Political Law Review

Prof: Atty. Edwin R. Sandoval

Submitted by:
MARLON M. ECHAVEZ 2006-0371

[G.R. No. 209271 - December 8, 2015]

[G.R. No. 209276 - December 8, 2015]
[G.R. No. 209301 - December 8, 2015]
[G.R. No. 209430 - December 8, 2015]

International Service for the Acquisition of Agri-Biotech Applications, Inc. et al., petitioner.
vs.
Greenpeace Southeast Asia (Philippines) et al, respondents.

THE BT TALONG CASE

VILLARAMA, JR., J.

EN BANC.

TOPIC BACKGROUND:

Q: What does Bt mean?

A: Bt means Bacillus Thuringiensis. A spore forming bacterium that produces crystals
protein (cry proteins), which are toxic to many species of insects. - University of California
San Diego, http://www.bt.ucsd.edu/what_is_bt.html

Q: Where is Bt Found?
A: Bt can be found almost anywhere in the world. Surveys have indicated that Bt is
distributed in the soil sparsely but frequently worldwide. Bt has been found in all types of
terrain, including, desert, and tundra habitats. *ibid

Q: Can it harmful to humans?

A: Bt belongs to the family of bacteria, which includes Bacillus Cerus (B cerus) which
are strains that produce toxins that cause gastroenteritis (food poisoning) in humans and
Bacillus Anthracis, the causative agent of anthrax. Bacillus Thuringiensis, on the otherhand
are toxic to many species of insects, - Genome Differences That Distinguish Bacillus
anthracis from Bacillus Cereus and Bacillus Thuringuensis,
http://aem.asm.org/content/69/5/2755.full#ref-10.

This Report aims to answer the legality of the said Bt talong field trials based on the
case to be discussed.

Significant Biotechnology Terms and Concepts:

GMO Genetically Modified Organism

Recombitant DNA (rDNA) Technology is often referred to as genetic engineering. It

allows scientists to transfer genes from one (1) organism to any other circumventing the
sexual process. In other to transfer certain traits from animals and plants species, for its own
benefit, you can now transfer genes from an animal specie to a plant specie and vice versa
with this genetic engineering. An organism created by genetic engineering is called a
Genetically Modified Organism (GMO).

(GM) Foods refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional content. In
this process, DNA acts as a carrier of plant traits which will be beneficial in the said plant.

This application of Biotechnology in agricultural production promises to overcome the

major constraints being faced in farming such as insect pest infestation and diseases which
lead to substantial losses. Pest resistant crops could substantially improve yields in
developing countries where pest damage is rampant and reduce the use of chemical
pesticides.

On the other hand, the usage of a foreign element in a local environment has also bad
effects. GM Crops affect the environment in more ways than one such as contaminating non-
GMO plants, creating super weeds and super pests, harming non-target species, changing
soil microbial and biochemical properties, and threatening biodiversity.

No study has made any accurate predictions about the long-term effects of GMOs on
human beings and the environment, thus, there is genetic instability. Continued testing is
either very expensive or impractical, and there is still a great deal about the process that
scientists do not understand.

Sustainable traditional farming

The aim of the project was to address food security. GM critics say that the real problem
is not on the scarcity but on the lack of access to food. The poor lack money to buy food and
lack the land on which to grow them. This system supports corporate control and impedes
common persons access to adequate food. The International Assessment of Agricultural
Knowledge, Science and Technology for Development (IAASTD) found little evidence to
support a conclusion that a modern biotechnologies are well-suited to meeting the needs of
small-scale and subsistence farmers, particularly under the increasingly unpredictable
environmental and economic conditions that they face.

A study conducted by the IAASTD called the Agricultural Knowledge, science and
technology (AKST) in relation to meeting development and sustainability goals of (1) reducing
hunger and poverty (2) improving nutrition, health and rural livelihoods; and (3) facilitating
social and environmental sustainability had a conclusion that a radical transformation of the
worlds food supply farming systems - especially the policies and institutions that affect them -
is necessary if we are to overcome converting economic and environmental crisis and feed
the world sustainably. Also, it held that high-yielding crop varieties, agrochemicals and
mechanization have primarily benefited the better-resourced groups in society and
transnational corporations, rather than the most vulnerable ones.

THE PARTIES:
 GREENPEACE SOUTHEAST ASIA (PHILIPPINES) Respondent - is the Philippine
branch of Greenpeace Southeast Asia. A non-governmental environmental organization
operating in 40 countries with an international coordinating body in Amsterdam, Netherlands.

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH

APPLICATIONS, INC. (ISAAA) Petitioner an international non-profit organization founded in
1990 which aims to facilitate the acquisition and transfer of agricultural biotechnology
applications from the industrial countries, for the benefit of poof farmers in the developing
countries and also to alleviate hunger and poverty in the developing countries. Partly funded
by the United States Agency for International Development (USAID) to promote the use of
agricultural biotechnology such as genetically modified organisms (GMOs).

MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG)

Respondent a coalition of local farmers, scientists and NGOs working towards the
sustainable use and management of biodiversity through farmers control of genetic and
biological resources, agricultural production, and associated knowledge.

UNIVERSITY OF THE PHILIPPINES LOS BAOS (UPLB) Autonimous constituent of

the University of the Philippines (UP). Is the center of biotechnology education and research
in Southeast Asia and home to at least four international research in Southeast Asia and
home to at least four international research and extension centers.

UNIVERSITY OF THE PHILIPPINES LOS BAOS FOUNDATION, INC. (UPLBFI)

Petitioner a private corporation organized to be an instrument for institutionalizing a rational
system of utilizing UPLB expertise and other assets for generating additional revenues and
other resources needed by UPLB.

UNIVERSITY OF THE PHILIPPINES (UP) Petitioner an institution of higher learning. A

state university task by the former President Gloria Macapagal Arroyo to perform its unique
and distinctive leadership in higher education and development. Also, it is to serve as a
research university in various fields of expertise and specialization by conducting basic and
applied research and development, and promoting research in various colleges and
universities, and contributing to the dissemination and application of knowledge.

BIOTECHNOLOGY IN THE PHILIPPINES

Biotechnology Is any technique that uses living organisms or substances from those
organisms to make or modify a product, to improve plants or animals, or to develop
microorganisms for specific uses.

DEVELOPMENT OF BIOTECHNOLOGY IN THE PHILIPPINES

1979 President Marcos established the National Institute for Applied Microbiology and
Biotechnology (BIOTECH) at UPLB. A premier research and development institution applying
traditional and modern biotechnology in innovating products, processes testing and analytical
services for agriculture, health, energy, industry and development.

1990 President Corazon Aquino E.O. 430 creating the National Committee on
Biodiversity of the Philippines (NCBP) tasked to identify and evaluate potential hazards
involved in initiating genetic engineering experiments or the introduction of new species and
genetically engineered organisms and recommend measures to minimize risks. To formulate
and review national policies and guidelines on biosafety, such as the safe conduct of work on
genetic engineering, pests and their genetic materials for the protection of public health,
environment and personnel and supervise the implementation thereof.

1991- NCBP formulated the Philippine Biosafety Guidelines governs and regulate the
importation or introduction, movement and field release of potentially hazardous biological
materials in the Philippines.

1993 December 29 - Convention on Biological Diversity (CBD) multilateral treaty

recognized that modern technology has great potential for human well-being if developed and
used with adequate safety measures for the environment and human health.

1998 Guidelines on Planned Release of Genetically Manipulated Organisms (GMOs)

and Potentially Harmful Exotic Species (PHES).

2000 January Cartagena Protocol on Biosafety (Cartagena Protocol) aims to

contribute to ensuring an adequate level of the safe transfer, handling and use of living
method organisms resulting from modern biotechnology that may have adverse effects on the
conservation and sustainable use of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary movements.

2000 March 24 - The Philippines signed the Cartagena Protocol which came into force
on September 11, 2003. This was later adopted by the Philippine Senate through Senate
Resolution No. 92 Resolution Concurring in the Ratification of the Cartagena Protocol on
Biosafety (CPB) to the UN Convention on Biological Diversity on August 14, 2006.

2002 April The Department of Agriculture (DA) issued DA Administrative Order (AO)
No. 08 providing rules and regulations for the importation and release into the environment of
plants and plant products derived from the use of modern biotechnology. (DAO-08-2002)
covers the importation or release in to the environment of:

(1)Any plant which has been altered or produces through the use of modern
biotechnology if the donor organism, host organism, or vector or vector agent belongs to the
genera or taxa classified by the Bureau of Plant Industry (BPI) as meeting the definition of
plant pest or is a medium for the introduction of noxious weeds; or

(2)Any plant or plant product altered through the use of modern biotechnology which
may pose significant risks to human health and the environment based on available scientific
and technical information.

2006 March 17 EO No. 514 (EO 514) or Establishing the National Biosafety
Framework (NBF), Prescribing Guidelines for its Implementation, and Strengthening the
NCBP. It shall apply to the development, adoption, and implementation of all biosafety
policies, measures and guidelines and in making decisions concerning the research,
development, handling and use, transboundary movement, release in to the environment and
management of regulated articles. It provides that unless amended by the issuing
departments or agencies, DAO 08-2002, the NCBP Guidelines on the Continue Use of
Genetically Modified Organisms, and all issuances of the Bureau of Food and Drugs Authority
(DFA) on products of modern biotchnology, shall continue to be in force and effect.

FACTS OF THE CASE:

On September 24, 2010, a Memorandum of Undertaking (MOU) was executed between

UPLBFI, ISAAA and UP Mindanao Foundation, Inc (UPMFI). It is in pursuance of a
collaborative research and development project on eggplants that are resistant to the fruit and
shoot borer. Also included in the project were UPLB through its Institute of Plant Breeding,
Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and the Agricultural
Biotechnology Support Project II (ABSPII) of USAID.

As described in the Field Trial Proposal, the pest-resistant crop subject of the field trial
was described as a bioengineered eggplant, Bacillus Thuringiensis (Bt) were incorporated
into the eggplant genome to produce the protein Cyr1 Ac which is toxic to the target insect
pests. Said protein was to affect a specific insect the lepidopteran Larvae such as the fruit
and shoot borer.

A contained experiment was started in 2007 until March 3, 2009. This was supervised by
the NCBP thus was given by said agency a Certificate of Completion of Contained
Experiment stating that During the conduct of the experiment, all the biosafety measures
have been complied with and no untoward incident has occurred.

Thus, on March 16, 2010 and June 28, 2010, BPI then issued Biosafety Permits to
UPLB to be conducted on the following approved trial sites: Kabacan, North Cotabato; Sta.
Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

Greenpeace, MASIPAG and individual respondents (Greenpeace, et al) on April 26,

2012 filed a Petition for Writ of Kalikasan and Writ of Continuing Mandamus with prayer for
the issuance of a Temporary Environmental Protection Order (TEPO). They alleged that the
Bt talong filed trials violate their constitutional right to health and a balanced ecology
considering that:
(1)The required environmental compliance certificate under Presidential Decree (PD)
No. 1151 was not secured prior to the project implementation;
(2)As mentioned in DAO 08-2002, Bt talong is presumed harmful to human health and
the environment, and there is no independent, peer-reviewed study on the safety of Bt talong
for human consumption and the environment;
(3)A study conducted by Professor Gilles-Eric Seralini showed adverse effects on rats
who were fed Bt corn, while local scientists also attested to the harmful effects of GMOs to
human and animal health;
(4) Bt crops can be directly toxic to non-target species as higlighted by a research
conducted in the US which demonstrated that pollen from Bt maize was toxic to the monarch
butterfly;
(5)Data from the used Bt Cyr1 Ab maize indicate that beneficial insects have increased
mortality when fed on larvae of a maize pest, the corn borer, which had been fed on Bt, and
hence non-target beneficial species that may feed on eggplant could be similarly affected;
(6)Data form china show that the use of Bt crops (Bt cotton) can exacerbate populations
of other secondary pests;
(7)The built in pesticides of Bt crops will lead to Bt resistant pests, thus increasing the
use of pesticides contrary to the claims by GMO Manufacturers; and;
(8)The 200 meters perimeter pollen trap area in the field testing area set by BPI is not
sufficient to stop contamination of nearby non-Bt eggplants because pollinators such as
honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated.

The full acceptance of the findings of MAHYCO Dossier was strongly assailed on the
ground that these do not precisely and adequately assess the numerous hazards posed by Bt
talong and its field trial.

It was also claimed that the Bt Talong field testing project did not comply with the
required consultation under Sec 26 & 27 of the Local Government Code evidenced by a
random survey conducted by Greenpeace on July 21, 2011. Various provinces surrounding
the testing area were not aware of the said testing and complained of lack of information on
the nature and uncertainties of the Bt talong field testing.

Greenpeace calls for the application of the precautionary principle. This principle
emphasizes the fact that Bt talong field testing being a classic environmental case where
scientific evidence as to the health, environmental and socio-economic safety is insufficient or
uncertain and preliminary scientific evaluation indicates reasonable grounds for concern that
there are potentially dangerous effects on human health and the environment.

The following reliefs are thus prayed for:

a.Upon the filing [of this petition], a Temporary Environment Protection Order should be
issued:
(i) enjoining public respondents BPI and FPA of the DA from processing for field testing,
and registering as herbicidal product, Bt talong in the Philippines;
(ii) stopping all pending field testing of Bt talong anywhere in the Philippines; and
(iii) ordering the uprooting of planted Bt talong for field trials as their very presence pose
significant and irreparable risks to human health and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact
statement system under the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field
tests report, regulatory compliance reports and supporting documents, and other material
particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the barangays,
municipalities, and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in
consultation with stakeholders, to submit an acceptable draft of an amendment of the National
BioSafety Framework of the Philippines, and DA Administrative Order No. 08, defining or
incorporating an independent, transparent, and comprehensive scientific and socio-economic
risk assessment, public information, consultation, and participation, and providing for their
effective implementation, in accord with international safety standards; and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to
conduct balanced nationwide public information on the nature of Bt talong and Bt talong field
trial, and a survey of social acceptability of the same.
 c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file
their respective returns and explain why they should not be judicially sanctioned for violating
or threatening to violate or allowing the violation of the above-enumerated laws, principles,
and international principle and standards, or committing acts, which would result into an
environmental damage of such magnitude as to prejudice the life, health, or property of
petitioners in particular and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that
are found to be violating the above mentioned laws, principles, and international standards;
and recommend to Congress curative legislations to effectuate such order.

On May 2, 2012, The court issued the Writ of Kalikasan against the ISAAA,
Environmental Management Bureau (EMB) BPI / Fertilizer and Pesticide Authority (FPA) and
UPLB, ordering them to make a verified return within a non-extendible period of ten (10) days,
as provided in sec. 8 Rule 7 of the Rules of Procedure for Environmental Cases.

ISAAA, EMB / BPI / FPA, UPLBFI and UPMFI filed their respective verified returns. Their
defenses as stated on the returns as stated are as follows:

a.The Issuance of Writ of Kalikasan is not proper because in the implementation of the
Bt talong project, all environmental laws were complied with;

b.The Bt talong project is not covered by the Philippine Environmental Impact Statement
(PEIS) Law and that Bt talong will not significantly affect the quality of the environment nor
poses a hazard to human health;

c.That there is a plethora of scientific works and literature, peer-reviewed, on the safety
of Bt talong human consumption;

d.That the allegations regarding the safety of Bt talong as food are irrelevant in the field
trial stage as none of the eggplants will be consumed by humans or animals, and all materials
that will not be used for analysis will be chopped, boiled and buried following the Biosafety
permit requirements;

e.They also sited the 50-year history of safe use and consumption of agricultural
products sprayed with commercial Bt microbial pesticides and a 14-year history of safe
consumption of food and feed derived from Bt crops;

f.Also mentioned was the almost 2 million hectares of land in the Philippines which have
been planted with Bt corn since 2003, and the absence of documented significant and
negative impact to the environment and human health;

g.The statements given by scientist and experts in support of the allegations of

Greenpeace, et al. on the safety of the Bt corn was also addressed by citing the contrary
findings in other studies which have been peer-reviewed and published in scientific journals;

h.Procedural aspect:
 h.1 ISAAA sought the dismissal of the petition for writ of kalikasan for non-observance of
the rule on hierarchy of courts and the allegations there in being mere assertions and
baseless conclusions of law;

h.2 The legal standing of Greenpeace, et al. in filing the petition for writ of kalikasan as
they do not stand to suffer any direct injury as as result of the Bt talong field tests,
Greenpeace have failed to allege that they have been prejudice or damaged, or their
constitutional rights to health and balance ecology were violated or threatened to be violated
by the conduct of Bt talong field trials.; and

h.3 the failure of the petition to state a cause of action and for utter lack of merit.

I. In Davao City, there were no further field trials conducted after the actual field trials at
Bago Oshiro which started in November 25, 2010 were uprooted by Davao City officials, on
December 17-18, 2010, hence no violation of constitutional rights of persons or damage to
the environment; and

J. That the precautionary principle is not applicable considering that the filed testing is
only a part of a continuing study being done to ensure that the field trials have no significant
and negative impact on the environment. Moreover, the issues raised by Greenpeace, et al.
Largely involve technical matters which pertain to the special competence of BPI whose
determination thereon is entitled to great respect and even finality.

On October 12, 2012, CA resolved that (1) greenpeace, et al. posses the requisite legal
standing to file the petition for writ of kalikasan; (2) assuming arguendo that the field trials
have already been terminated, the case is not yet moot since it is capable of repetition yet
evading review; (3) the alleged non-compliance with environmental and local government
laws present justiciable controversies for resolution by the court.

CA then proceeded with the case, adopting the hot-tub method where in the expert
witness of both parties testify at the same time. Each side had various witnesses presented in
court.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al. Granting
the petition and the respondents are directed among others to permanently cease and desist
from further conducting Bt talong field trials; and to protect, preserve rehabilitate and restore
the environment in accordance with the foregoing judgment of this Court.

The decision of CA was based on the fact that the existing regulations issued by the DA
and the Department of Science and Technology (DOST) are insufficient to guarantee the
safety of the environment and health of the people. This is in concurrence to Dr. Malayangs
view (in this case, expert witness for the petitioners), that the government must exercise
precaution under the realm of public policy and beyond scientific debate, the appellate court
noted the possible irreversible effects of the field trials and the introduction Bt talong to the
market.

Also, Sec 1, Rule 20 of the Rules of Procedure for Environmental Cases, Stressing the
fact that the over-all safety guarantee of the Bt talong remains unknown. the appellate court
cited the testimony of Dr. Cario (expert witness for the respondents), who admitted that the
product is not yet safe for consumption because a safety assessment is still to be done. Amid
the uncertainties surrounding the Bt talong, the CA upheld the primacy of the peoples
constitutional right to health and a balanced ecology.

CA denied the motions for reconsideration of the pro-Bt talong field testing.

CA clarifies that the writ stops the field trials of Bt talong as a procedure but does not
stop Bt talong research, there is no assault on academic freedom.

CA also emphasizes on the theory that introducing a genetically modified plant into our
ecosystem is an ecologically imbalancing act. In introducing a genetically modified plant in
our intricate world of plants by humans certainly appears to be a ecologically imbalancing act.
The damage that it will cause may be irreparable and irreversible.

Petitioners Arguments per case:

GR. No. 209271

ISAAA claims:
A)that CA gravely erred in refusing to dismiss the petition for writ of continuing
mandamus and writ of kalikasan considering that the same is already moot and academic;
B)That the CA gravely erred in refusing to dismiss the petition for writ of continuing
mandamus and writ of kalikasan considering that the same raises political questions;
C)That the respondents failed to exhaust administrative remedies since the primary
jurisdiction over the same lies with the regulatory agencies;
D)That the CA erred in granting the writ of kalikasan in favor of the respondents when
evidence was shown that Bt talong complied with all the environmental laws, rules and
regulations in order to ensure that the peoples right to a balanced and healthful ecology are
protected and respected. That the field trials do not cause environmental damage and do not
prejudice the life, health and property of inhabitants of two or more provinces or cities, and in
applying the precautionary principle in this case despite the fact that respondents failed to
present an iota of evidence to prove their claim;
E)That the CA erred in granting a writ of continuing mandamus against petitioner ISAAA;
F)That the CA Decision dated May 17, 2013 and Resolution dated September 20, 2013
is an affront to academic freedom and scientific progress.

G.R. No. 209276

EMB, BPI and FPA as represented by the Office of the Solicitor General (OSG) assails
the CA Decision granting the petition for writ of kalikasan and writ of continuing mandamus
despite the failure of Greenpeace, et al. To prove the requisites for their issuance.
(1) That the respondents failed to present evidence to prove their claim that the Bt
talong filed trials violated environmental laws and rules.
(2) That the respondents presented evidences of studies which were insubstantial as
they were not published in peer-reviewed scientific journals.
(3) That the application of the precautionary principle was misplaced.
(4) Petitioners also avers that no damage to human health since no Bt talong will be
ingested by any human being during the field trial stage and if the results of said testing are
adverse, petitioners will not allow the release of Bt talong to the environment.
 (5) Respondents failed to prove that there was any unlawful deviation from the
provisions of DAO 08-2002. The BPIs factual fining on the basis of risk assessment on the Bt
talong project should thus be accorded respect, if not finality by the courts.
(6) Petitioners add that the CA treads on judicial legislation when it recommended the
re-examination of countrys existing laws and regulations governing studies and research on
GMOs.

G.R. No. 209301

UPLBFI argues:
(1)That respondents failed to adduce the quantum of evidence necessary to prove
actual or imminent injury to them or the environment as to render the controversy ripe for
judicial determination;
(2)That the respondents spoke only of injury in the speculative, imagined kind without
any factual basis. UPLBFI submits the specific facts borne by competent evidence on record
against the respondents bare allegation;
(3)That the precautionary principle was misapplied in this case because the testimonial
and documentary evidence of respondents do not amount to scientifically plausible evidence
of threats of serious and irreversible damage to the environment;
(4)That the respondents failed to show proof of specific facts of environmental damage
of magnitude contemplated under the Rules of Procedure for Environmental Cases as to
warrant sanction on the Bt talong field trials; and,
(5)That the Bt talong field trial was an exercise of the constitutional liberty of scientists
and other academicians of UP which was deprived without due process of law.

G.R. No. 209430

UP alleges:
(1)Same with the UPLBFIs reasoning that it was conducted in the exercise of UPLBs
academic freedom;
(2)That such field tests were performed in accordance to limits prescribed by DAO 08-
2002;
(3)That the Bt eggplant were not yet intended to be introduced into the Philippines
ecosystem nor to the local market for human consumption; and,
(4)That the CA could not support its Decision and Resolution on the pure conjecture and
imagination of one witness. Basic is the rule that a decision must be supported by evidence
on record.

Respondents defenses:

The filing of said petition is based on the fact that the inherent and potential risks and
adverse effects of GM crops are recognized in the Cartagena Protocol and our biosafety
regulations. Said contamination may be caused by pollination, ingestion by insects and other
animals, water and soil run off, human error, mechanical accident and even by stealing was
inevitable in growing Bt talong in an open environment for field trial. Such contamination may
even manifest after many years and in places very far away from the trial sites.

In the issue on violation of the law, the petitioners omitted their crucial duties to conduct
Environmental Impact Assessment (EIA); evaluate health impacts, get the free prior and
informed consent of the people in the communities; and to provide remedial and liability
processes in the approval of the biosafety permit and conduct of the field trials in its five sites
located in five provinces. Making the people and the environment at serious and irreversible
risks.

Also, respondents sited studies conducted by foreign countries as well as local reports
to add to their defenses. They also made mention of various cases drawn from various news
reports and specific scientific literature which were also submitted to court.

The claim of the petitioners that the respondents failed to present enough evidence to
call for the court to render a affirmative decision for them. The respondents claim that the
biosafety evidence cannot be contained in a corpus delicti to be presented in court. This is
why the Cartagena Protocols foundation is on the precautionary principle and development of
sound science and its links, to social and human rights law though its elements of public
awareness, public participation and public right to know. The Rules of Procedure for
Environmental Cases specifically provides that the appreciation of evidence in a case like this
must be guided by the precautionary principle.

The non-exhaustion of administrative remedies, respondents stressed that nowhere in

the 22 sections of DAO 08-2002 that one can find a remedy to appeal the decision of the DA
issuing the field testing permit.

Finally, in the Writ of continuing mandamus, respondents made mention of EO 514

explicitly stating that the application of biosafety regulations shall be made in accordance with
existing laws and the guidelines therein provided. In addition to that, pursuant to the PEISS
law and Sections 12 and 13 of the Philippines Fisheries Code of 1998, an environmental
impact statement (EIS) is required and an environmental compliance certificate (ECC) is
necessary before such Bt crop filed trials can be conducted.

ISSUES:

1.Legal standing of the respondents;

2.Mootness;
3.Violation of the doctrines of primary jurisdiction and exhaustion of administrative
remedies;
4.Application of the law on environmental impact statement/assessment on projects
involving the introduction and propagation of GMOs in the country;
5.Evidence of damage or threat of damage to human health and the environment in two
or more provinces, as a result of the Bt talong field trials;
6.Neglect or unlawful omission committed by the public respondents in connection with
the processing and evaluation of the applications for Bt talong field testing; and
7.Application of Precautionary Principle.

SC RULING

Legal Standing

A right of appearance in a court of justice on a given question particularly to a partys

personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result and thus calls for more than just a generalized grievance. Being a matter of
procedure, it may be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires such when the subject matter requires
transcendental importance.

In Oposa v Factoran, Jr., the court recognized the public right of citizens to a balanced
and healthful ecology which, for the first time in our nations constitutional history, is solemnly
incorporated in the fundamental law. Ordinary citizens not only have legal standing to use for
the enforcement of environmental rights, they can do so in representation of their own and
future generations. Their personality to sue in behalf of the succeeding generations can only
be based on the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned.

The liberalization rule on standing is now enshrined in the Rules of Procedure for
Environmental Cases which allows the filing of a citizen suit in environmental cases.

Mootness

Since the termination of all field trials on August 10, 2012, the petitioners argue that the
case is now moot. The rule on moot cases is that it no longer presents a justiciable
controversy because the issues involved have become academic or dead, or when the matter
in dispute has already been resolved and hence, one is not entitled to judicial intervention.
This rule is subject to an exception where in the issue is likely to be raised again between the
parties. Nonetheless, courts will decide cases, otherwise moot and academic if:

(1)It is a grave violation of the Constitution;

(2)The exceptional character of the situation and the paramount public interest is
involved;
(3)When the constitutional issue raised requires formation of controlling principles to
guide the bench, the bar and the public; and
(4)The case is capable of repetition yet evading review.

The second and fourth exceptions justified the CA in not dismissing the case despite the
termination of Bt talong field trials.

Primary Jurisdiction and Exhaustion of Administrative Remedies

The general rule is that before a party may seek the intervention of the court, he should
first avail of all the means afforded him by administrative processes, again subject to
exceptions such as when there is no other plain, speedy and adequate remedy and when
strong public interest is involved as mentioned in the case Republic v Lacap.

Another point is that clearly the provisions of DAO 08-2002 do not provide a speedy, or
adequate remedy for the respondents to determine the questions of unique national and local
importance raised here that pertain to laws and rules for environmental protection, thus
respondents were justified in coming to this court. The court takes judicial notice of the fact
that GMF is an intensely debated global issue, and despite the entry of GMO corps, like Bt
corn, in the Philippines in the last decade, it is only now that such controversy involving
alleged damage or threat to human health and the environment from GMOs has reached the
courts.

Upon discussions during the hot tub method, it presented more of scientific uncertainty
than valid arguments. The present uncertainty warrants further research and it has been
demonstrated that here is a risk of bias relying on hypothesis that dominate mainstream
science. There is therefore a need for independent research that is without prejudice and
unbiased by economic and professional interests.

Application of current environmental laws

It must be stressed that the DAO 08-2002 and related DA orders are not the only legal
basis for regulating field trials of GM plants and plant products. EO 514 establishing the
National Biosafety Framework (NBF) provides that the NBF must apply all biosafety policies,
measures and guidelines to the field trials development, adoption and its implementation.
Also, in making the biosafety decisions concerning the research, development, handling and
use, transboundary movement, release into the environment and management of regulated
articles. It aims to enhance the decision-making system of the application of products of
modern biotechnology, making it more transparent and participatory. It also mandates that
decisions shall be arrived with the participation of all relevant stakeholders and organizations
who shall have appropriate access to information and the opportunity to participate
responsibly and in an accountable manner in biosafety decision-making process.

EO 514 mandates that concerned departments and agencies, most particularly DENR-
EMB, BPI and FPA, make a determination whether the EIS system should apply to the
release of GMOs into the environment and issue joint guidelines on the matter.

Considering the minimum requirements under the most comprehensive national

biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient.
Sec. 7 Public Participation of the NBF mandates a more transparent, meaningful and
participatory public consultation on the conduct of field trials beyond the posting and
publication of notices and information sheets, consultations with some residents and
government officials, and submission of written comments, provided in DAO 08-2002.

The DOA lacks the mechanisms to mandate applicants to comply with international
biosafety protocols. Also, it was a being claimed that the BPI had approved nearly all of the
applications for GMO field trials as confirmed by the data posted on their website, and
because of this respondents avers that the DAO 08-2002 should be declared invalid.

Also, as mentioned above, under Section 12 and 13 of RA 8550 Philippine Fisheries

Code, all government agencies as well as private corporations, firms and entities who intend
to undertake activities or projects which will affect the quality of the environment are required
to prepare a detailed Environmental Impact Statement (EIS) and an environmental
compliance certificate (ECC) prior to undertaking the development activity.

All government agencies as well as private corporations who wishes to undertake

activities or projects which will affect the quality of the environment are required to prepare a
detailed Environmental Impact Statement (EIS) prior to such development activity. The
Environmental Management Bureau (EMB) regard this project concerning the usage of GMO
in the country as to poses potential hazards to human health and the environment, therefore
is considered by such agency as an Environmental Critical Project (ECP). ECP is likely to
have significant adverse impact that may be sensitive, irreversible and diverse and which may
include activities that have significant environmental consequences.

We find that the petitioners simply adhered to the procedures laid down by DAO 08-
2002 and no real effort was made to operationalize the principles of the NBF in the conduct of
field testing of Bt talong.

Application of Precautionary Principle

It must be noted that NBF requires the use of precaution. Section 2.6 Using Precaution -
In accordance to with the Principle 15 of the Rio Declaration of 1992 and the relevant
provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11
(par. 8), the precautionary approach shall guide biosafety decision. The principles and
elements of this approach are hereby implemented through the decision-making system in the
NBF.

The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized

and adopted in Montreal on January 29, 2000, established an international regime primarily
aimed at regulating trade in GMOs intended for release into the environment, in accordance
with Principle 15 of the Rio Declaration on Environment and Development. It thus provides:

Article 10: Decision Procedure - 6. Lack of scientific certainty due to insufficient relevant
scientific information and knowledge regarding the extent of the potential adverse effects of a
living modified organism on the conservation and sustainable use of biological diversity in the
Party of import, taking also into account risks to human health, shall not prevent that Party
from taking a decision, as appropriate, with regard to the import of the living modified
organism in question as referred to in paragraph 3 above, in order to avoid or minimize such
potential adverse effects.

Article 11: Procedure for living modified organisms intended for direct use as food or
feed, or for processing - 8. Lack of scientific certainty due to insufficient relevant scientific
information and knowledge regarding the extent of the potential adverse effects of a living
modified organism on the conservation and sustainable use of biological diversity in the Party
of import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of that living modified organism
intended for direct use as food or feed, of for processing, in order to avoid or minimize such
potential adverse effects.

Annex III Risk Assessment

General Principles
4.Lack of scientific knowledge or scientific consensus should not necessarily be
interpreted as indicating a particular level of risk, an absence of risk or an acceptable risk.

The precautionary principle originated in Germany in the 1960s,expressing the

normative idea that governments are obligated to "foresee and forestall" harm to the
environment. For the first time, the precautionary approach was codified under Principle 15.

Principle 15: In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.

It also indicates that a lack of scientific certainty is no reason to postpone action to avoid
potentially serious or irreversible harm to the environment.

According the The Precautionary Principle World Commission on the Ethics of

Scientific Knowledge and Technology (COMEST) in March 2005, the precautionary principle
applies when the following conditions are met:
there exist considerable scientific uncertainties;
there exist scenarios (or models) of possible harm that are scientifically reasonable
(that is based on some scientifically plausible reasoning);
uncertainties cannot be reduced in the short term without at the same time increasing
ignorance of other relevant factors by higher levels of abstraction and idealization;
the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;
there is a need to act now, since effective counteraction later will be made significantly
more difficult or costly at any later time.

The Rules on Procedure for Environmental Cases (A.M. No. 09-6-8-SC) likewise
incorporated the principle in Part V, Rule 20, which states:

PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a
causal link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given
the benefit of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity to
present or future generations; or (3) prejudice to the environment without legal consideration
of the environmental rights of those affected.

Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. It bridges the gap in cases where scientific certainty in
factual findings cannot be achieved. The court may construe a set of facts as warranting
either judicial action or inaction, with the goal of preserving and protecting the environment.
The second paragraph of section 1 above shows a bias is created in favor of the
constitutional right of the people to a balanced and healthful ecology(Article II, Sec. 16, 1987
Philippine Constitution), thus, shifting the burden of evidence of harm away from those likely
to suffer harm and onto those desiring to change the status quo.

For purposes of evidence, the precautionary principle should be treated as a principle of

last resort, where application of the regular Rules of Evidence would cause in an inequitable
result for the environmental plaintiff - (a) settings in which the risks of harm are uncertain; (b)
settings in which harm might be irreversible and what is lost is irreplaceable; and ( c) settings
in which the harm that might result would be serious. When these features - uncertainty, the
possibility of irreversible harm, and the possibility of serious harm - coincide, the case for the
precautionary principle is strongest. When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is
one of the strongest fora in which the precautionary principle may find applicability. Assessing
the evidence on record, as well as the current state of GMO research worldwide, the Court
finds all the three conditions present in this case - uncertainty, the possibility of irreversible
harm and the possibility of serious harm. Alongside the aforesaid uncertainties, the non-
implementation of the NBF in the crucial stages of risk assessment and public consultation,
including the determination of the applicability of the EIS requirements to GMO field testing,
are compelling reasons for the application of the precautionary principle.

There exists a preponderance of evidence that the release of GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and
eventually the health of our people once the Bt eggplants are consumed as food. Adopting the
precautionary approach, the Court rules that the principles of the NBF need to be
operationalized first by the coordinated actions of the concerned departments and agencies
before allowing the release into the environment of genetically modified eggplant.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the
Court of Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as follows:
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY
ENJOINED;
2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared
NULL AND VOID; and
3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms is TEMPORARILY
ENJOINED until a new administrative order is promulgated in accordance with law.

No pronouncement as to costs.

SO ORDERED.