CASE DIGEST: BORACAY FOUNDATION, INC. v.

THE PROVINCE OF Building and Jetty Port, Enhancement and Recovery of Old Caticlan
AKLAN, et al. Coastline, and Reclamation of a Portion of Foreshore for
Commercial Purposes (the Marina Project), in Malay, Aklan.
FACTS: Boracay Island (Boracay), a tropical paradise located in the
Western Visayas region of the Philippines and one of the countrys Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of
most popular tourist destinations, was declared a tourist zone and respondent Province issued Resolution No. 2009110, which
marine reserve in 1973 under Presidential Proclamation No. 1801. authorized Governor Marquez to file an application to reclaim the
The island comprises the barangays of Manoc-manoc, Balabag, and 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with
Yapak, all within the municipality of Malay, in the province of Aklan. respondent PRA.

More than a decade ago, respondent Province built the Caticlan Meanwhile, the Sangguniang Bayan of the Municipality of Malay
Jetty Port and Passenger Terminal at Barangay Caticlan to be the expressed its strong opposition to the intended foreshore lease
main gateway to Boracay.It also built the corresponding Cagban application, through Resolution No. 044, approved on July 22, 2009,
Jetty Port and Passenger Terminal to be the receiving end for manifesting therein that respondent Provinces foreshore lease
tourists in Boracay. Respondent Province operates both ports to application was for business enterprise purposes for its benefit, at
provide structural facilities suited for locals, tourists and guests and the expense of the local government of Malay, which by statutory
to provide safety and security measures. provisions was the rightful entity to develop, utilize and reap
benefits from the natural resources found within its jurisdiction.
Governor Marquez sent a letter to respondent PRA on March 12,
2009 expressing the interest of respondent Province to reclaim In August 2009, a Preliminary Geohazard Assessmentfor the
about 2.64 hectares of land along the foreshores of Barangay enhancement/expansion of the existing Caticlan Jetty Port and
Caticlan, Municipality of Malay, Province of Aklan, pursuant to Passenger Terminal through beach zone restoration and Protective
Resolution No. 13, s. 2008 issued by the Sangguniang Barangay of Marina Developments in Caticlan, Malay, Aklan was completed.
Caticlan.
Thereafter, Governor Marquez submitted an Environmental
Sometime in April 2009, respondent Province entered into an Performance Report and Monitoring Program (EPRMP) to DENR-
agreement with the Financial Advisor/Consultant that won in the EMB RVI, which he had attached to his letter dated September 19,
bidding process held a month before, to conduct the necessary 2009, as an initial step for securing an Environmental Compliance
feasibility study of the proposed project for the Certificate (ECC). The letter reads in part:
Renovation/Rehabilitation of the Caticlan Passenger Terminal

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With the project expected to start its construction implementation PRA not to grant reclamation permit and notice to proceed to the
next month, the province hereby assures your good office that it will Marina Project of the respondent Provincial Government of Aklan
give preferential attention to and shall comply with whatever located at Caticlan, Malay, Aklan.
comments that you may have on this EPRMP.
In a letter dated October 12, 2010, petitioner informed respondent
Within the same month of October 2009, respondent Province PRA of its opposition to the reclamation project.
deliberated on the possible expansion from its original proposed
reclamation area of 2.64 hectares to forty (40) hectares. Petitioner likewise transmitted its Resolution No. 001, Series of
2010, registering its opposition to the reclamation project to
Respondent PRA approved the reclamation project on April 20, respondent Province, respondent PRA, respondent DENR-EMB, the
2010 in its Resolution No. 4094and authorized its General National Economic Development Authority Region VI, the Malay
Manager/Chief Executive Officer (CEO) to enter into a MOA with Municipality, and other concerned entities.
respondent Province for the implementation of the reclamation
project. Petitioner alleges that despite the Malay Municipalitys denial of
respondent Provinces request for afavorableendorsement, as well
On April 27, 2010, DENR-EMB RVI issued to respondent Province as the strong opposition manifested both by Barangay Caticlan and
ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the petitioner as an NGO, respondent Province still continued with the
Reclamation Project to the extent of 2.64 hectares to be done along implementation of the Reclamation Project.
the Caticlan side beside the existing jetty port.
On June 1, 2011, petitioner filed the instant Petition for
On May 17, 2010, respondent Province entered into a MOA with Environmental Protection Order/Issuance of the Writ of Continuing
respondent PRA. Mandamus. On June 7, 2011, this Court issued a Temporary
Environmental Protection Order (TEPO) and ordered the
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the respondents to file their respective comments to the petition.
Malay Municipality reiterated its strong opposition to respondent
Provinces project and denied its request for afavorableendorsement After receiving a copy of the TEPO on June 9, 2011, respondent
of the Marina Project. Province immediately issued an order to the Provincial Engineering
Office and the concerned contractor to cease and desist from
The Malay Municipality subsequently issued Resolution No. 016, conducting any construction activities until further orders from this
Series of 2010, adopted on August 3, 2010, to request respondent Court.

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 was the reclamation only, and not the entire project that includes
ISSUES: the construction of a commercial building and wellness center, and
other tourism-related facilities.Petitioners objections, as may be
recalled, pertain not only to the reclamation per se, but also to the
[1] Whether or not the petition should be dismissed for having building to be constructed and the entire projects perceived ill
been rendered moot and academic; effects to the surrounding environment.

[2] Whether or not the petition is premature because petitioner The Sangguniang Bayan of Malay obviously imposed explicit
failed to exhaust administrative remedies before filing this case; conditions for respondent Province to comply with on pain of
revocation of its endorsement of the project, including the need to
conduct a comprehensive study on the environmental impact of the
[3] Whether or not respondent Province failed to perform a full reclamation project, which is the heart of the petition before us.
EIA as required by laws and regulations based on the scope and Therefore, the contents of the two resolutions submitted by
classification of the project; respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already
addressed all the issues raised and rendered the instant petition
[4] Whether or not respondent Province complied with all the
moot and academic.
requirements under the pertinent laws and regulations; and
We do not agree with respondents appreciation of the
[5] Whether or not there was proper, timely, and sufficient public applicability of the rule on exhaustion of administrative remedies
consultation for the project in this case. We are reminded of our ruling in Pagara v. Court of
Appeals, which summarized our earlier decisions on the procedural
requirement of exhaustion of administrative remedies, to wit:
HELD: A close reading of the two LGUs respective resolutions
would reveal that they are not sufficient to render the petition The rule regarding exhaustion of administrative remedies is not a
moot and academic, as there are explicit conditions imposed that hard and fast rule. It is not applicable: (1) where the question in
must be complied with by respondent Province. In Resolution No. dispute is purely a legal one, or (2) where the controverted act is
003, series of 2012, of the Sangguniang Barangay of Caticlan it is patently illegal or was performed without jurisdiction or in excess of
stated that any vertical structures to be constructed shall be subject jurisdiction; or (3) where the respondent is a department secretary,
for barangay endorsement. Clearly, what the barangay endorsed whose acts as an alter ego of the President bear the implied or

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assumed approval of the latter, unless actually disapproved by him, which provides for the issuance of a TEPO as an auxiliary remedy
or (4) where there are circumstances indicating the urgency of prior to the issuance of the writ itself. The Rationale of the said
judicial intervention. Rules explains the writ in this wise:

Said principle may also be disregarded when it does not provide a Environmental law highlights the shift in the focal-point from the
plain, speedy and adequate remedy, when there is no due process initiation of regulation by Congress to the implementation of
observed, or where the protestant has no other recourse. regulatory programs by the appropriate government agencies.

Although petitioner was not a party to the proceedings where the

decision to issue an ECC was rendered, it stands to be aggrieved by
the decision, because it claims that the reclamation of land on the Thus, a government agencys inaction, if any, has serious
implications on the future of environmental law enforcement.
Caticlan side would unavoidably adversely affect the Boracay side,
where petitioners members own establishments engaged in the Private individuals, to the extent that they seek to change the scope
of the regulatory process, will have to rely on such agencies to take
tourism trade. As noted earlier, petitioner contends that the
declared objective of the reclamation project is to exploit Boracays the initial incentives, which may require a judicial component.
Accordingly, questions regarding the propriety of an agencys action
tourism trade because the project is intended to enhance support
services thereto; however, this objective would not be achieved or inaction will need to be analyzed.
since the white-sand beaches for which Boracay is famous might be
negatively affected by the project. Petitioners conclusion is that This point is emphasized in the availability of the remedy of the writ
of mandamus, which allows for the enforcement of the conduct of
respondent Province, aided and abetted by respondents PRA and
DENR-EMB RVI, ignored the spirit and letter of our environmental the tasks to which the writ pertains: the performance of a legal
duty.
laws, and should thus be compelled to perform their duties under
said laws.
The writ of continuing mandamus permits the court to retain
*** jurisdiction after judgment in order to ensure the successful
implementation of the reliefs mandated under the courts decision
The new Rules of Procedure for Environmental Cases, A.M. No. 09- and, in order to do this, the court may compel the submission of
compliance reports from the respondent government agencies as
6-8-SC, provides a relief for petitioner under the writ of continuing
mandamus, which is a special civil action that may be availed of to well as avail of other means to monitor compliance with its
decision.
compel the performance of an act specifically enjoined by law and

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 reclaimed area would be devoted to the construction of a
Petitioner had three options where to file this case under the rule: commercial building, and the area to be utilized for the expansion of
the Regional Trial Court exercising jurisdiction over the territory the jetty port consists of a mere 3,000 square meters (sq. m). To be
where the actionable neglect or omission occurred, the Court of true to its definition, the EIA report submitted by respondent
Appeals, or this Court. Province should at the very least predict the impact that the
construction of the new buildings on the reclaimed land would have
Petitioner had no other plain, speedy, or adequate remedy in the on the surrounding environment. These new constructions and their
ordinary course of law to determine the questions of unique environmental effects were not covered by the old studies that
national and local importance raised here that pertain to laws and respondent Province previously submitted for the construction of
rules for environmental protection, thus it was justified in coming to the original jetty port in 1999, and which it re-submitted in its
this Court. application for ECC in this alleged expansion, instead of conducting
updated and more comprehensive studies.
3) Being the administrator of the EIS System, respondent DENR-EMB
RVIs submissions bear great weight in this case.However, the Any impact on the Boracay side cannot be totally ignored, as
following are the issues that put in question the wisdom of Caticlan and Boracay are separated only by a narrow strait. This
respondent DENR-EMB RVI in issuing the ECC: becomes more imperative because of the significant contributions
of Boracays white-sand beach to the countrys tourism trade, which
[1] Its approval of respondent Provinces classification of the project requires respondent Province to proceed with utmost caution in
as a mere expansion of the existing jetty port in Caticlan, instead of implementing projects within its vicinity.
classifying it as a new project;
[2] Its classification of the reclamation project as a single instead of ***
a co-located project;
[3] The lack of prior public consultations and approval of local The Local Government Code establishes the duties of national
government agencies; and government agencies in the maintenance of ecological balance, and
[4] The lack of comprehensive studies regarding the impact of the requires them to secure prior public consultation and approval of
reclamation project to the environment. local government units for the projects described therein.

In the case before us, the national agency involved is respondent

As may be gleaned from the breakdown of the 2.64 hectares as PRA. Even if the project proponent is the local government of Aklan,
described by respondent Province above, a significant portion of the it is respondent PRA which authorized the reclamation, being the

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exclusive agency of the government to undertake reclamation environmental impact or damage. In fact, respondent Province once
nationwide. Hence, it was necessary for respondent Province to go tried to obtain the favorable endorsement of the Sangguniang
through respondent PRA and to execute a MOA, wherein Bayan of Malay, but this was denied by the latter.
respondent PRAs authority to reclaim was delegated to respondent
Province. Respondent DENR-EMB RVI, regional office of the DENR, is Moreover, DENR DAO 2003-30 provides:
also a national government institution which is tasked with the
issuance of the ECC that is a prerequisite to projects covered by 5.3. ublic Hearing / Consultation Requirements
environmental laws such as the one at bar.
For projects under Category A-1, the conduct of public hearing as
This project can be classified as a national project that affects the part of the EIS review is mandatory unless otherwise determined by
environmental and ecological balance of local communities, and is EMB. For all other undertakings, a public hearing is not mandatory
covered by the requirements found in the Local Government Code unless specifically required by EMB.
provisions.
Proponents should initiate public consultations early in order to
Under the Local Government Code, therefore, two requisites must ensure that environmentally relevant concerns of stakeholders are
be met before a national project that affects the environmental and taken into consideration in the EIA study and the formulation of the
ecological balance of local communities can be implemented: prior management plan. All public consultations and public hearings
consultationwith the affected local communities, and prior approval conducted during the EIA process are to be documented. The public
of the project by the appropriate sanggunian. Absent either of these hearing/consultation Process reportshall be validated by the
mandatory requirements, the projects implementation is illegal. EMB/EMB RD and shall constitute part of the records of the EIA
process.
Based on the above, therefore, prior consultations and prior
approval are required by law to have been conducted and secured In essence, the above-quoted rule shows that in cases requiring
by the respondent Province. Accordingly, the information public consultations, the same should be initiated early so that
dissemination conducted months after the ECC had already been concerns of stakeholders could be taken into consideration in the
issued was insufficient to comply with this requirement under the EIA study. In this case, respondent Province had already filed its ECC
Local Government Code. Had they been conducted properly, the application before it met with the local government units of Malay
prior public consultation should have considered the ecological or and Caticlan.
environmental concerns of the stakeholders and studied measures
alternative to the project, to avoid or minimize adverse The lack of prior public consultation and approval is not corrected

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by the subsequent endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan on February 13, 2012, and the a. its classification of the reclamation project as a single instead of a
Sangguniang Bayan of the Municipality of Malay onFebruary 28, co-located project;
2012, which were both undoubtedly achieved at the urging and b. its approval of respondent Provinces classification of the project
insistence of respondent Province. As we have established above, as a mere expansion of the existing jetty port in Caticlan, instead of
the respective resolutions issued by the LGUs concerned did not classifying it as a new project; and
render this petition moot and academic. c. the impact of the reclamation project to the environment based
on new, updated, and comprehensive studies, which should
It is clear that both petitioner and respondent Province are forthwith be ordered by respondent DENR-EMB RVI.
interested in the promotion of tourism in Boracay and the
protection of the environment, lest they kill the proverbial hen that
2. Respondent Province of Aklan shall perform the following:
lays the golden egg. At the beginning of this decision, we mentioned
that there are common goals of national significance that are very
a. fully cooperate with respondent DENR-EMB RVI in its review of
apparent from both the petitioners and the respondents respective
pleadings and memoranda. the reclamation project proposal and submit to the latter the
appropriate report and study; and
As shown by the above provisions of our laws and rules, the speedy b. secure approvals from local government units and hold proper
consultations with non-governmental organizations and other
and smooth resolution of these issues would benefit all the parties.
Thus, respondent Provinces cooperation with respondent DENR- stakeholders and sectors concerned as required by Section 27 in
relation to Section 26 of the Local Government Code.
EMB RVI in the Court-mandated review of the proper classification
and environmental impact of the reclamation project is of utmost
Respondent Philippine Reclamation Authority shall closely monitor
importance.
the submission by respondent Province of the requirements to be
issued by respondent DENR-EMB RVI in connection to the
WHEREFORE, premises considered, the petition is hereby PARTIALLY
GRANTED. The TEPO issued by this Court is hereby converted into a environmental concerns raised by petitioner, and shall coordinate
with respondent Province in modifying the MOA, if necessary,
writ of continuing mandamus specifically as follows:
based on the findings of respondent DENR-EMB RVI.
1. Respondent Department of Environment and Natural Resources-
Environmental Management Bureau Regional Office VI shall revisit The petitioner Boracay Foundation, Inc. and the respondents The
Province of Aklan, represented by Governor Carlito S. Marquez,
and review the following matters:

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The Philippine Reclamation Authority, and The DENR-EMB (Region organisms and recommend measures to minimize risks"; and (b)
VI) are mandated to submit their respective reports to this Court "formulate and review national policies and guidelines on biosafety,
regarding their compliance with the requirements set forth in this such as the safe conduct of work on genetic engineering, pests and
Decision no later than three (3) months from the date of their genetic materials for the protection of public health,
promulgation of this Decision. environment[,] and personnel^] and supervise the implementation
thereof."
In the meantime, the respondents, their concerned contractor/s,
Upon the completion of the contained experiment, the NCBP issued
and/or their agents, representatives or persons acting in their
place or stead, shall immediately cease and desist from continuing a Certificate... therefor stating that all biosafety measures were
complied with, and no untoward incident had occurred
the implementation of the project covered by ECC-R6-1003-096-
7100 until further orders from this Court. For this purpose, the On March 16, 2010 and June 28, 2010, the Bureau of Plant
respondents shall report within five (5) days to this Court the Industries (BPI) issued two (2)-year Biosafety Permits... for field
status of the project as of their receipt of this Decision, copy testing of Bt talong
furnished the petitioner.
Consequently, field testing proceeded in approved trial sites in
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH North Cotabato, Pangasinan, Camarines Sur, Davao City, and
APPLICATIONS v. GREENPEACE SOUTHEAST ASIA , GR No. 209271, Laguna.
2016-07-26
On April 26, 2012, respondents Greenpeace Southeast Asia
Facts: (Philippines) (Greenpeace), Magsasaka at Siyentipiko sa
From 2007 to 2009, petitioner University of the Philippines Los Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents)
filed before the Court a Petition for Writ of Continuing Mandamus
Baiios (UPLB), the implementing institution of the field trials,
conducted a contained experiment on Bt talong under the and Writ of Kalikasan with Prayer for the Issuance of a Temporary
Environmental Protection Order (TEPO)
supervision of the National Committee on Biosafety of the
Philippines (NCBP) (petition for Writ of Kalikasan) against herein petitioners... alleging
that the Bt talong field trials violated their constitutional right to
The NCBP, created under Executive Order No. (EO) 430,... is the
regulatory body tasked to: (a) "identify and evaluate potential health and a balanced ecology considering, among others, that: (a)
the Environmental Compliance Certificate (ECC), as required by
hazards involved in initiating genetic engineering experiments or
the introduction of new species and genetically engineered Presidential Decree No. (PD) 1151,... was not secured prior to the
field trials;... b) the required public consultations under the Local

8
Government Code (LGC) were not complied with;... and (c) as a serious and irreversible harm. The Court observed that eggplants
regulated article under DAO 08-2002, Bt talong is presumed harmful are a staple vegetable in the country that is mostly grown by small-
to human health and the environment, and that there is no scale farmers who are poor and marginalized; thus, given the
independent, peer-reviewed study showing its safety for human country's rich biodiversity, the consequences of contamination and
consumption and the environment genetic pollution would be disastrous and irreversible.

Further, they contended that since the scientific evidence as to the The Court likewise agreed with the CA in not dismissing the case for
safety of Bt talong remained insufficient or uncertain, and that being moot and academic despite the completion and tennination
preliminary scientific evaluation shows reasonable grounds for of the Bt talong field trials, on account of the following exceptions
concern, the precautionary principle should be applied and, to the mootness principle: (a) the exceptional character of the
thereby, the field trials be enjoined. situation and the paramount public interest is involved; and (b) the
case is capable of repetition yet evading review.
On May 2, 2012, the Court issued... a Writ of Kalikasan against
petitioners (except UPLB Thus, the Court permanently enjoined the field testing of Bt talong.
In addition, it declared DAO 08-2002 null and void for failure to
May 17, 2013, the CA ruled in favor of respondents and directed consider the provisions of the NBF. The Court also temporarily
petitioners to permanently cease and desist from conducting the Bt enjoined any application for contained use, field testing,
talong field trials. propagation, commercialization, and importation of genetically
Issues: modified organisms until a new administrative order is promulgated
in accordance with law.
the case should have been dismissed for mootness in view of the
completion and termination of the Bt talong field trials and the The Court's Ruling
expiration of the Biosafety Permits;... b) the Court should not have The Court grants the motions for reconsideration on the ground of
ruled on the validity of DAO 08-2002 as it was not raised as an issue mootness.
Ruling: As a rule, the Court may only adjudicate actual, ongoing
The Proceedings Before the Court controversies.

Agreeing with the CA, the Court held that the precautionary Accordingly, the Court is not empowered to decide moot questions
principle applies in this case since the risk of harm from the field or abstract propositions, or to declare principles or rules of law
trials of Bt talong remains uncertain and there exists a possibility of which cannot affect the result as to the thing in issue in the case

9
before it. In other words, when a case is moot, it becomes non- I. On the paramount public interest exception.
justiciable
However, a survey of cases would show that, as a common
An action is considered "moot" when it no longer presents a guidepost for application, there should be some perceivable benefit
justiciable controversy because the issues involved have become to the public which demands the Court to proceed with the
academic or dead or when the matter in dispute has already been resolution of otherwise moot questions.
resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties. no perceivable benefit to the public - whether rational or practical -
may be gained by resolving respondents' petition for Writ of
There is nothing for the court to resolve as the determination
thereof has been overtaken by subsequent events Kalikasan on the merits.

To recount, these cases, which stemmed from herein respondents

Nevertheless, case law states that the Court will decide cases,
otherwise moot, if: first, there is a grave violation of the petition for Writ of Kalikasan, were mooted by the undisputed
expiration of the Biosafety Permits issued by the BPI and the
Constitution; second, the exceptional character of the situation and
the paramount public interest are involved; third, when the completion and tennination of the Bt talong field trials subject of
the same
constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, These incidents effectively negated the necessity for the reliefs
the case is capable of repetition yet evading review sought by respondents in their petition for Writ of Kalikasan as
Thus, jurisprudence recognizes these four instances as exceptions to there was no longer any field test to enjoin. Hence, at the time the
CA rendered its Decision dated May 17, 2013, the reliefs petitioner
the mootness principle.
sought and granted by the CA were no longer capable of execution.
In the December 8, 2015 Decision of the Court, it was held that (a)
As the matter never went beyond the field testing phase, none of
the present case is of exceptional character and paramount public
interest is involved, and (b) it is likewise capable of repetition yet the foregoing tasks related to propagation were pursued or the
requirements therefor complied with. Thus, there are no
evading review. Hence, it was excepted from the mootness principle
guaranteed after-effects to the already concluded Bt talong field
However, upon a closer scrutiny of the parties' arguments, the trials that demand an adjudication from which the public may
Court reconsiders its ruling and now finds merit in petitioners' perceivably benefit. Any future threat to the right of herein
assertion that the case should have been dismissed for being moot respondents or the public in general to a healthful and balanced
and academic, and that the aforesaid exceptions to the said rule ecology is therefore more imagined than real
should not have been applied.

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In fact, it would appear to be more beneficial to the public to stay a field trials. In this regard, it cannot be said that the present case is
verdict on the safeness of Bt talong - or GMOs, for that matter - one capable of repetition yet evading review.
until an actual and justiciable case properly presents itself before
the Court discerns that there are two (2) factors to be considered
the Court
before a case is deemed one capable of repetition yet evading
II. The case is not one capable of repetition vet evading review: (1) the challenged action was in its duration too short to be
review.Likewise, contrary to the Court's earlier ruling... these cases fully litigated prior to its cessation or expiration; and (2) there was a
do not fall under the "capable of repetition yet evading review" reasonable expectation that the same complaining party would be
exception. subjected to the same action.

Under DAO 08-2002, no specific guidelines were used in the Here, respondents cannot claim that the duration of the subject
conduct of risk assessment, and the DA was allowed to consider the field tests was too short to be fully litigated. It must be emphasized
expert advice of, and guidelines developed by, relevant that the Biosafety Permits for the subject field tests were issued on
international organizations and regulatory authorities of countries March 16, 2010 and June 28, 2010, and were valid for two (2) years.
with significant experience in the regulatory supervision of the However, as aptly pointed out by Justice Leonen, respondents filed
regulated article. their petition for Writ of Kalikasan only on April 26, 2012 -just a few
months before the Biosafety Permits expired and when the field
However, under JDC 01-2016, the CODEX Alimentarius Guidelines testing activities were already over.[108] Obviously, therefore, the
was adopted to govern the risk assessment of activities involving cessation of the subject field tests before the case could be resolved
the research, development, handling and use, transboundary was due to respondents' own inaction.
movement, release into the environment, and management of
genetically modified plant and plant products derived from the use Moreover, the situation respondents complain of is not susceptible
of modern biotechnology. to repetition. As discussed above, DAO 08-2002 has already been
superseded by JDC 01-2016. Hence, future applications for field
Based on the foregoing, it is apparent that the regulatory testing will be governed by JDC 01-2016 which, as illustrated, adopts
framework now applicable in conducting risk assessment in matters a regulatory framework that is substantially different from that of
involving the research, development, handling, movement, and DAO 08-2002.
release into the environment of genetically modified plant and plant
products derived from the use of modern biotechnology is In fact, in relation to the latter, it is observed that the Court should
substantially different from that which was applied to the subject not have even delved into the constitutionality of DAO 08-2002 as it
was merely collaterally challenged by respondents, based on the

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constitutional precepts of the people's rights to information on Paje v. Casino et al.
matters of public concern, to public participation, to a balanced and
healthful ecology, and to health. Posted on October 27, 2016

(Remedial law: Appeal; Environmental Law: Writ of Kalikasan)

All told, with respondents' petition for Writ of Kalikasan already
mooted by the expiration of the Biosafety Permits and the G.R. No. 207257        February 3, 2015
completion of the field trials subject of these cases, and with none
of the exceptions to the mootness principle properly attending, the HON. RAMON JESUS PAJE, in his capacity as DENR
Court grants the instant motions for reconsideration and hereby Secretary v. Hon. Teodoro Casino, et al.
dismisses the aforesaid petition. With this pronouncement, no
Facts
discussion on the substantive merits of the same should be made.
The Department of Environment and Natural Resources, issued an
Principles:
Environmental Compliance Certificate for a proposed coal-fired
At this point, the Court discerns that there are two (2) factors to be power plant at Subic, Zambales to be implemented by RP Energy.
considered before a case is deemed one capable of repetition yet
Hon. Teodoro Casino and a number of legislators filed a Petition for
evading review: (1) the challenged action was in its duration too
Writ of Kalikasan against RP energy, SBMA, and Hon. Ramon Paje as
short to be fully litigated prior to its cessation or expiration; and (2)
the DENR secretary on the ground that actual environmental
there was a reasonable expectation that the same complaining
damage will occur if the power plant project is implemented and
party would be subjected to the same action.
that the respondents failed to comply with certain laws and rules
governing or relating to the issuance of an ECC and amendments
thereto.

The Court of Appeals denied the petition for the Writ of Kalikasan
and invalidated the ECC. Both the DENR and Casino filed an appeal,
the former imputing error in invalidating the ECC and its
amendments, arguing that the determination of the validity of the
ECC as well as its amendments is beyond the scope of a Petition for
a Writ of kalikasan; while the latter claim that it is entitled to a Writ
of Kalikasan.

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Issues ecology of the magnitude contemplated under the Rules.
Otherwise, the petition should be dismissed outright and the action
1. Whether the parties may raise questions of fact on appeal re-filed before the proper forum with due regard to the doctrine of
on the issuance of a writ of Kalikasan; and exhaustion of administrative remedies.
2. Whether the validity of an ECC can be challenged via a writ In the case at bar, no such causal link or reasonable connection was
of Kalikasan shown or even attempted relative to the aforesaid second set of
Ruling allegations. It is a mere listing of the perceived defects or
irregularities in the issuance of the ECC.
1. Yes, the parties may raise questions of fact on appeal on the
issuance of a writ of Kalikasan because the Rules on the Paje v. Casino
Writ of kalikasan (Rule 7, Section 16 of the Rules of G.R. No. 207257, 749 SCRA 39, FEBUARY 3, 2015
Procedure for Environmental Cases)allow the parties to DEL CASTILLO, J. EN BANC
raise, on appeal, questions of fact— and, thus, constitutes
an exception to Rule 45 of the Rules of Court— because of FACTS: Casiño filed a petition for issuance of writ of kalikasan
the extraordinary nature of the circumstances surrounding against SBMA and RP Energy on the ground that (1) the operation of
the issuance of a writ of kalikasan. the power plant would cause environmental damage and pollution,
that this would adversely affect the residents of the provinces of
2. Yes, the validity of an ECC can be challenged via a writ of
Bataan and Zambales, and cites as basis RP Energy’s EIS, which
Kalikasan because such writ is principally predicated on an
allegedly admits that acid rain may occur in the combustion of coal;
actual or threatened violation of the constitutional right to a
and (2) that the ECC should also be nullified for failure to comply
balanced and healthful ecology, which involves
with the procedures and requirements for the issuance of the ECC
environmental damage of a magnitude that transcends
because it was issued and the Lease and Development Agreement
political and territorial boundaries.
(LDA) entered into without the prior approval of the concerned
A party, therefore, who invokes the writ based on alleged defects or sanggunians as required under Sections 26 and 27 of the Local
irregularities in the issuance of an ECC must not only allege and Government Code (LGC); that the LDA was entered into without
prove such defects or irregularities, but must also provide a causal securing a prior certification from the National Commission on
link or, at least, a reasonable connection between the defects or Indigenous Peoples (NCIP) as required under Section 59 of RA8371
irregularities in the issuance of an ECC and the actual or threatened or the Indigenous Peoples’ Rights Act of 1997.
violation of the constitutional right to a balanced and healthful

13
ISSUE: In this case, will the defects or irregularities in the issuance of Antecedents
ECC due to actual or threatened violation of the constitutional right
to a balanced and healthful ecology cause the issuance of the Writ The petitioner was a proponent of a water-resource development
and utilization project in Barangay Jimilia-an in the Municipality of
of Kalikasan?
Loboc, Bohol that would involve the tapping and purifying of water
HELD: No, the defects or irregularities in the issuance of ECC in this from the Loboc River, and the distribution of the purified water to
case will not cause the issuance of the Writ of Kalikasan. A party, the residents of Loboc and six other municipalities. The petitioner
who invokes the writ based on alleged defects or irregularities in applied for a Certificate of Non- Coverage (CNC) with the
the issuance of an ECC must not only allege and prove such defects Environmental Management Bureau (EMB) of the Department of
or irregularities, but must also provide a causal link or, at least, a Environment and Natural Resources (DENR), Region 7, seeking to be
reasonable connection between the defects or irregularities in the exempt from the requirement of the Environmental Compliance
issuance of an ECC and the actual or threatened violation of the Certificate (ECC) under Section 4 of Presidential Decree No. 1586 on
constitutional right to a balanced and healthful ecology of the the following justifications, to wit:
magnitude contemplated under the Rules. Here, no such causal link
or reasonable connection was shown or even attempted relative to
the aforesaid set of allegations but mere listing of the perceived 1)
defects or irregularities in the issuance of the ECC. Hence, the writ
of kalikasan shall not issue. The whole project simply involves tapping of water from the Loboc
River, filtering and purifying it, and distributing the same to the
PEOPLE VS. CANDA consumers in the covered towns;
G.R. No. 160932, January 14, 2013
(People vs. Canda G.R. No. 160932 January 14, 2013) 2)

From the source to the filtration plant, then to the purifier stations,
The peremptory writ of mandamus is an extraordinary remedy that then finally to the consumers' households, water flows through
is issued only in extreme necessity, and the ordinary course of steel pipes;
procedure is powerless to afford an adequate and speedy relief to
3)
one who has a clear legal right to the performance of the act to be
compelled. The filtration and purifying process employs the latest technology
"electrocatalytic"internationally accepted for safety and
environment friendliness;

14
4) project was no different from the Loboc-Loay waterworks project of
the Department of Public Works and Highways (DPWH) that had
No waste is generated, as the electrocatalytic process dissolves all recently been issued a CNC.[3]
impurities in the water;

5) The project involves no destruction [n]or harm to the

environment. On the other hand, it is environment friendly.[1] On April 3, 2002, RD Lipayon notified the petitioner that its
documents substantially complied with the procedural aspects of
the EMB's review, and that the application was assigned EMB-
Upon evaluating the nature and magnitude of the environmental DENR-7 Control No. CNC-02-080 for easy reference in case of
impact of the project, respondent Nestor M. Canda, then Chief of follow-up and submission of additional requirements.[4]
EMB in Bohol, rendered his findings in a letter dated December 4,
2001, as follows:
Later on, RD Lipayon informed the petitioner that an Initial
Environmental Examination document was required for the project
1) due to its significant impact in the area.[5]

The project is located within a critical area; hence, Initial

Environmental Examination is required. On August 26, 2002, RD Lipayon required the petitioner to submit
2) the following documents to enable the EMB to determine whether
the project was within an environmentally critical area or not, to
The project is socially and politically sensitive therefore proof of wit:
social acceptability should be established. Proper indorsement from
the [Protected Area Management Bureau or] PAMB should be
secured.[2] (Emphasis supplied) Certification from DENR, Provincial Environment and Natural
Resources Office (PENRO) that it is not within areas declared by law
as national parks, watershed reserves, wildlife preservation area,
On January 11, 2002, the petitioner appealed Canda's findings to sanctuaries and not within the purview of Republic Act No. 7586 or
respondent EMB Region 7 Director Bienvenido L. Lipayon (RD the National Integrated Protected Areas System (NIPAS) Act, and
Lipayon), claiming that it should also be issued a CNC because the

15
other issuances including international commitments and PHIVOLCS that the area was not subjected to earthquakes of at least
declarations; intensity VII in the Rossi-Forel scale or its equivalent during the
period of 1949 until the year 2001.

Certification from the DENR Regional Office/ PENRO [that] the areas
within the project do[ ] not constitute [the habitat] for any 3.4.
endangered or threatened species or indigenous wildlife (Flora and
Fauna). PAGASA that the area is not storm surge-prone.

3.5.

Certification from the following: Mines and Geosciences Bureau Region 7 (MGB 7) that the area is
not located along fault lines or within fault zones and not located in
critical slope.

3.1. 3.6.

Philippine Atmospheric Geophysical and Astronomical Services City Mayor and/or City Engineers Office that the area is not flood
Administration (PAGASA) that the area is not frequently visited or prone.
hard-hit by typhoons. This shall refer to all areas where typhoon
signal no. 3 not hoisted for at least twice a year during the last five 3.7.
(5) years prior to the year of reckoning. Years to be considered shall Network of Protected Areas for Agriculture (NPAA) of the Bureau of
be from January 1995 to December 2001. Soils and Water Management (BSWM) that the area is not classified
as Prime Agricultural Land.
3.2.

Philippine Institute of Volcanology and Seismology (PHIVOLCS) that

the area was not subjected to an earthquake of at least intensity VII
in the Rossi-Forel scale or its equivalent and hit by tsunamis during
the period of 1638 until the year 2001. Certification from the Provincial Tourism Office or its equivalent
office that areas in your project are not set-aside as aesthetic
3.3. potential tourist spot.

16
 should secure an Environmental Compliance Certificate (ECC),
otherwise penalties shall be imposed.[6] (Emphases supplied)
Certification from the National Water Resources Board (NWRB) that
areas within your project are not recharge[d] areas of aquifer.

On January 28, 2003, the petitioner submitted eight certifications,

[7] including the certification issued by the Philippine Institute of
Certification from DENR regional Office and/or Environmental Volcanology and Seismology (PHIVOLCS), as follows:
Management Bureau 7 (EMB 7) that Loboc River is not
characterized by one or any combination of the following
conditions:
That the project area, Loboc, Bohol was subjected to an earthquake
of Intensity VII in the adapted Rossi-Forel scale of I-IX last February
8, 1990. The magnitude of the earthquake is 6.8 and the highest
Tapped for domestic purposes; intensity reported was VIII, based on the Rossi-Forel Intensity Scale.
During the said earthquake, the PMI Academy Building collapsed
while minor cracks were sustained by the municipal hall, public
With controlled and/or protected areas declared by appropriate school, town church and some other houses in the town. There
authorities; and were reports that immediately after the earthquake, the force of
the incoming waves from the sea caused Alijuan River in the town of
Duero to flow inland. The report also states that the waves affected
Which support wildlife and fishery activities. 10-50 meters of the coastal beach of the towns of Jagna, Duero,
Guindulman, Garcia Hernandez and Valencia.[8] (Emphases
supplied)

A Certificate of Non-Coverage will duly be issued to your foundation

once all the above mentioned required certifications are complied
with. The petitioner failed to secure a certification from the Regional
Office of the Mines and Geosciences Bureau (RO-MGB) to the effect
that the project area was not located along a fault line/fault zone or
a critical slope because RO-MGB did not have the data and expertise
Projects that are covered by P.D. 1586 or the Environmental Impact
System (EIS) Law should not start unless the Project Proponent

17
to render such finding, and thus had to forward the petitioner's Therefore, we reiterate our previous stand that your project is
request to the MGB Central Office.[9] covered by the EIS System pursuant to P.D. 1586, the Environmental
Impact Statement Law.[11]

Upon the MGB's advice, the petitioner sought and obtained the
required certification from PHIVOLCS, but the certification did not On March 27, 2003, the petitioner filed a petition for mandamus
state whether the project area was within a critical slope. Instead, and damages in the Regional Trial Court (RTC) in Loay, Bohol,[12]
the certification stated that the project site was approximately 18 alleging that it was now entitled to a CNC as a matter of right after
kilometers west of the East Bohol Fault.[10] having complied with the certification requirements; and that the
EMB had earlier issued a CNC to the DPWH for a similar waterworks
project in the same area.
Given the tenor of the certification from PHIVOLCS, RD Lipayon's
letter dated February 4, 2003 declared that the project was within
an environmentally critical area, and that the petitioner was not In the decision dated November 18, 2003,[13] the RTC dismissed
entitled to the CNC, viz: the petition for mandamus upon the following considerations,
namely: (1) PHIVOLCS certified that the project site had been
subjected to an Intensity VII earthquake in 1990; (2) the CNC issued
After thorough review of your submitted certifications, it was found by the EMB to a similar waterworks project of the DPWH in the
out that the area was subjected to an earthquake of Intensity VII in same area was only for the construction of a unit spring box intake
the adapted Rossi-Forel scale wherein the magnitude of the and pump house, and the DENR issued a cease and desist order
earthquake is 6.8 with the highest intensity reported of VIII and you relative to the DPWH's additional project to put up a water filtration
fail to support certification that the project area is not within critical plant therein; (3) the determination of whether an area was
slope. And based on the Water Usage and Classification per environmentally critical was a task that pertained to the EMB; (4)
Department Order (DAO) 34 Series of 1990, subject river system the assignment of a control number by the EMB to the petitioner's
was officially classified as Class B intended for swimming and application did not mean that the application was as good as
bathing purposes. Moreover, one component of your project approved; (5) the RTC would not interfere with the primary
involves opening of roadway connected to the barangay road. prerogative of the EMB to review the merits of the petitioner's
application for the CNC; and (6) there was already a pending appeal
lodged with the DENR Secretary.

18
Hence, this appeal brought directly to the Court via petition for The petitioner insists that RD Lipayon already exercised his
review on certiorari. discretion by finding that the application substantially complied
with the procedural aspects for review and by assigning Control No.
CNC-02-080 to its application; that after the petitioner complied
Issues with the requirements enumerated in the August 26, 2002 letter of
RD Lipayon, the EMB became duty-bound to issue the CNC to the
petitioner; that the EMB issued a CNC to a similar project of the
DPWH in the same area; that it filed an appeal with the DENR
The petitioner submits the following issues:
Secretary, but the appeal remained unresolved; and that it brought
the petition for mandamus precisely as a speedier recourse.

WHETHER OR NOT, AFTER PETITIONER'S DUE COMPLIANCE WITH

THE REQUIREMENTS MANDATED BY RESPONDENTS FOR THE
In their comment, RD Lipayon and Canda aver that the act
ISSUANCE OF THE CERTIFICATE OF NON- COVERAGE (CNC) APPLIED
complained of against them involved an exercise of discretion that
FOR BY PETITIONER, IT IS NOW THE RIPENED DUTY OF
could not be compelled by mandamus; that the petitioner's
RESPONDENTS, THROUGH RESPONDENT EMB REGIONAL DIRECTOR,
proposed project was located within an environmentally critical
TO ISSUE SAID DOCUMENT IN FAVOR OF PETITIONER;
area, and the activities to be done were so significant that they
would create massive earth movement and environmental
degradation; that the petitioner violated the rule against forum
WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE shopping; and that the petitioner had no cause of action against
ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO them for failure to exhaust administrative remedies.
RESPONDENT DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP
TO THE PRESENT;
On his part, the DENR Secretary, through the Solicitor General,
contends that the petition raises questions of fact that are not
WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES proper in a petition for review; that the petitioner should have
FROM RESPONDENTS IN THEIR PERSONAL CAPACITY.[14] appealed to the CA under Rule 41 of the Rules of Court; that the
grant or denial of a CNC application is discretionary and cannot be

19
compelled by mandamus; and that the petitioner failed to exhaust environmentally critical area. For this reason, the Court is
administrative remedies. constrained to deny due course to the petition for review.

Accordingly, the Court is called upon to resolve, firstly, whether the It is a settled rule, indeed, that in the exercise of our power of
appeal directly to this Court from the RTC was proper, and, review, the Court is not a trier of facts and does not normally
secondly, whether the petition for mandamus was the correct undertake the re-examination of the evidence presented by the
recourse. contending parties during the trial of the case. The Court relies on
the findings of fact of the Court of Appeals or of the trial court, and
accepts such findings as conclusive and binding unless any of the
Ruling following exceptions obtains, namely: (a) when the findings are
grounded entirely on speculation, surmises or conjectures; (b) when
the inference made is manifestly mistaken, absurd or impossible; (c)
when there is grave abuse of discretion; (d) when the judgment is
The petition for review is denied for its lack of merit.
based on a misapprehension of facts; (e) when the findings of facts
are conflicting; (f) when in making its findings the Court of Appeals
or the trial court went beyond the issues of the case, or its findings
1. are contrary to the admissions of both the appellant and the
appellee; (g) when the findings are contrary to the trial court; (h)
Petitioner's appeal is improper
when the findings are conclusions without citation of specific
under Rule 45, Rules of Court evidence on which they are based; (i) when the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not
disputed by the respondent; (j) when the findings of fact are
premised on the supposed absence of evidence and contradicted by
This appeal by certiorari is being taken under Rule 45, Rules of
the evidence on record; and (k) when the Court of Appeals or the
Court, whose Section 1 expressly requires that the petition shall
trial court manifestly overlooked certain relevant facts not disputed
raise only questions of law which must be distinctly set forth. Yet,
by the parties, which, if properly considered, would justify a
the petitioner hereby raises a question of fact whose resolution is
different conclusion.[15] However, none of the aforementioned
decisive in this appeal. That issue of fact concerns whether or not
exceptions applies herein.
the petitioner established that its project was not located in an

20
 petitioner's application for the CNC, Administrative Order No. 42
dated November 2, 2002[19] had just vested the authority to grant
2. or deny applications for the ECC in the Director and Regional
Mandamus was an improper remedy for petitioner Directors of the EMB. Notwithstanding the lack of a specific
implementing guideline to what office the ruling of the EMB
We dismiss the present recourse because the petitioner failed to Regional Director was to be appealed, the petitioner could have
exhaust the available administrative remedies, and because it failed been easily guided in that regard by the Administrative Code of
to show that it was legally entitled to demand the performance of 1987, which provides that the Director of a line bureau, such as the
the act by the respondents. EMB,[20] shall have supervision and control over all division and
other units, including regional offices, under the bureau.[21] Verily,
supervision and control include the power to "review, approve,
It is axiomatic, to begin with, that a party who seeks the reverse or modify acts and decisions of subordinate officials or
intervention of a court of law upon an administrative concern units."[22] Accordingly, the petitioner should have appealed the
should first avail himself of all the remedies afforded by EMB Regional Director's decision to the EMB Director, who
administrative processes. The issues that an administrative agency exercised supervision and control over the former.
is authorized to decide should not be summarily taken away from it
and submitted to a court of law without first giving the agency the
opportunity to dispose of the issues upon due deliberation.[16] The It is relevant to mention that the DENR later promulgated
court of law must allow the administrative agency to carry out its Administrative Order No. 2003-30[23] in order to define where
functions and discharge its responsibilities within the specialized appeals should be taken, providing as follows:
areas of its competence.[17] This rests on the theory that the
administrative authority is in a better position to resolve questions Section 6. Appeal
addressed to its particular expertise, and that errors committed by
subordinates in their resolution may be rectified by their superiors if
given a chance to do so.[18] Any party aggrieved by the final decision on the ECC/CNC
applications may, within 15 days from receipt of such decision, file
an appeal on the following grounds:
The records show that the petitioner failed to exhaust the available Grave abuse of discretion on the part of the deciding authority, or
administrative remedies. At the time RD Lipayon denied the

21
Serious errors in the review findings. appeal in line with the principle of exhaustion of administrative
remedies. Its failure to do so rendered its resort to mandamus in
The DENR may adopt alternative conflict/dispute resolution the RTC premature. The omission is fatal, because mandamus is a
procedures as a means to settle grievances between proponents remedy only when there is no appeal, nor any plain, speedy and
and aggrieved parties to avert unnecessary legal action. Frivolous adequate remedy in the ordinary course of law.[25]
appeals shall not be countenanced.

Another reason for denying due course to this review is that the
The proponent or any stakeholder may file an appeal to the petitioner did not establish that the grant of its application for the
following: CNC was a purely ministerial in nature on the part of RD Lipayon.
Hence, mandamus was not a proper remedy.

Deciding Authority

Where to file the appeal The CNC is a certification issued by the EMB certifying that a project
is not covered by the Environmental Impact Statement System (EIS
EMB Regional Office Director Office of the EMB Director System) and that the project proponent is not required to secure an
ECC.[26] The EIS System was established by Presidential Decree
EMB Central Office Director Office of the DENR Secretary
(P.D.) No. 1586 pursuant to Section 4 of P.D. No. 1151 (Philippine
DENR Secretary Office of the President Environmental Policy) that required all entities to submit an EIS for
projects that would have a significant effect on the environment,
thus:

Moreover, the petitioner states in its pleadings that it had a pending

appeal with the DENR Secretary. However, the records reveal that
the subject of the appeal of the petitioner was an undated Section 4. Environmental Impact Statements. Pursuant to the above
resolution of the DENR Regional Director, Region VII, denying its enunciated policies and goals, all agencies and instrumentalities of
application for the CNC,[24] not the decision of RD Lipayon. the national government, including government-owned or
Nonetheless, even assuming that the pending appeal with the DENR controlled corporations, as well as private corporations, firms and
Secretary had related to RD Lipayon's decision, the petitioner entities shall prepare, file and include in every action, project or
should still have waited for the DENR Secretary to resolve the

22
undertaking which significantly affects the quality of the P.D. No. 1586 exempted from the requirement of an EIS the
environment a detailed statement onbr/> projects and areas not declared by the President of the Philippines
as environmentally critical,[27] thus:
(a)

the environmental impact of the proposed action, project or

undertaking Section 5. Environmentally Non-Critical Projects. - All other projects,
undertakings and areas not declared by the Presidents as
(b) environmentally critical shall be considered as non-critical and shall
any adverse environmental effect which cannot be avoided should not be required to submit an environmental impact statement. The
the proposal be implemented National Environmental Protection Council, thru the Ministry of
Human Settlements may however require non-critical projects and
(c) undertakings to provide additional environmental safeguards as it
may deem necessary.
alternative to the proposed action

(d)
On December 14, 1981, the President issued Proclamation No. 2146
a determination that the short-term uses of the resources of the
declaring areas and types of projects as environmentally critical and
environment are consistent with the maintenance and
within the scope of the EIS System, as follows:
enhancement of the long-term productivity of the same; and

(e)
Environmentally Critical Projects
whenever a proposal involve[s] the use of depletable or non-
renewable resources, a finding must be made that such use and
commitment are warranted.
Heavy Industries

xxxx
Non-ferrous metal industries

Iron and steel mills

23
Petroleum and petro-chemical industries including oil and gas

Smelting plants Infrastructure Projects

Major dams

Resource Extractive Industries Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)

Major reclamation projects d. Major roads and bridges.

Major mining and quarrying projects

Forestry projects
Environmentally Critical Areas

Logging
All areas declared by law as national parks, watershed reserves,
Major wood processing projects wildlife preserves and sanctuaries;
Introduction of fauna (exotic-animals) in public/private forests Areas set aside as aesthetic potential tourist spots;
Forest occupancy Areas which constitute the habitat for any endangered or
Extraction of mangrove products threatened species of indigenous Philippine Wildlife (flora and
fauna);
Grazing
Areas of unique historic, archaeological, or scientific interests;

Areas which are traditionally occupied by cultural communities or

Fishery Projects tribes;

Areas frequently visited and/or hard-hit by natural calamities

(geologic hazards, floods, typhoons, volcanic activity, etc.);
Dikes for fishpond development projects
Areas with critical slopes;

24
Areas classified as prime agricultural lands; Coral reef, characterized by one or any combination of the following
conditions:
Recharged areas of aquifers;

Water bodies characterized by one or any combination of the

following conditions; with 50% and above live coralline cover;

spawning and nursery grounds for fish;

tapped for domestic purposes which act as natural breakwater of coastlines.

within the controlled and/or protected areas declared by

appropriate authorities
Projects not included in the foregoing enumeration were considered
which support wildlife and fishery activities non-critical to the environment and were entitled to the CNC.

Mangrove areas characterized by one or any combination of the The foregoing considerations indicate that the grant or denial of an
following conditions: application for ECC/CNC is not an act that is purely ministerial in
nature, but one that involves the exercise of judgment and
discretion by the EMB Director or Regional Director, who must
with primary pristine and dense young growth; determine whether the project or project area is classified as critical
to the environment based on the documents to be submitted by the
adjoining mouth of major river systems; applicant.

near or adjacent to traditional productive fry or fishing grounds;

which act as natural buffers against shore erosion, strong winds and The petitioner maintains that RD Lipayon already exercised his
storm floods; discretion in its case when he made his finding that the application
substantially complied with the procedural requirements for review.
on which people are dependent for their livelihood.
As such, he was then obliged to issue the CNC once the petitioner
had submitted the required certifications.

25
 It is not amiss for us to observe, therefore, that the petitioner
grossly misunderstood the nature of the remedy of mandamus. To
The petitioner errs on two grounds. avoid similar misunderstanding of the remedy hereafter, a short
exposition on the nature and office of the remedy is now
appropriate.
Firstly, RD Lipayon had not yet fully exercised his discretion with
regard to the CNC application when he made his finding. It is clear
that his finding referred to the "procedural requirements for The writ of mandamus is of very ancient and obscure origin. It is
review" only. He had still to decide on the substantive aspect of the believed that the writ was originally part of the class of writs or
application, that is, whether the project and the project area were mandates issued by the English sovereign to direct his subjects to
considered critical to the environment. In fact, this was the reason perform a particular act or duty.[28] The earliest writs were in the
why RD Lipayon required the petitioner to submit certifications form of letters missive, and were mere personal commands. The
from the various government agencies concerned. Surely, the command was a law in itself, from which there was no appeal. The
required certifications were not mere formalities, because they writ of mandamus was not only declaratory of a duty under an
would serve as the bases for his decision on whether to grant or existing law, but was a law in itself that imposed the duty, the
deny the application. performance of which it commanded.[29] The King was considered
as the fountain and source of justice, and when the law did not
afford a remedy by the regular forms of proceedings, the
Secondly, there is no sufficient showing that the petitioner prerogative powers of the sovereign were invoked in aid of the
satisfactorily complied with the requirement to submit the needed ordinary powers of the courts.[30]
certifications. For one, it submitted no certification to the effect that
the project site was not within a critical slope. Also, the PHIVOLCS's
certification showed that the project site had experienced an A judicial writ of mandamus, issued in the King's name out of the
Intensity VII earthquake in 1990, a fact that sufficed to place the site court of King's Bench that had a general supervisory power over all
in the category of "areas frequently visited and/or hard-hit by inferior jurisdictions and officers, gradually supplanted the old
natural calamities." Clearly, the petitioner failed to establish that it personal command of the sovereign.[31] The court of King's Bench,
had the legal right to be issued the CNC applied for, warranting the acting as the general guardian of public rights and in the exercise of
denial of its application. its authority to grant the writ, rendered the writ of mandamus the
suppletory means of substantial justice in every case where there

26
was no other specific legal remedy for a legal right, and ensured The writ of mandamus has also retained an important feature that
that all official duties were fulfilled whenever the subject-matter sets it apart from the other remedial writs, i.e., that it is used
was properly within its control.[32] Early on, the writ of mandamus merely to compel action and to coerce the performance of a pre-
was particularly used to compel public authorities to return the existing duty.[38] In fact, a doctrine well-embedded in our
petitioners to public offices from which they had been unlawfully jurisprudence is that mandamus will issue only when the petitioner
removed.[33] has a clear legal right to the performance of the act sought to be
compelled and the respondent has an imperative duty to perform
the same.[39] The petitioner bears the burden to show that there is
Mandamus was, therefore, originally a purely prerogative writ such a clear legal right to the performance of the act, and a
emanating from the King himself, superintending the police and corresponding compelling duty on the part of the respondent to
preserving the peace within the realm.[34] It was allowed only in perform the act.[40]
cases affecting the sovereign, or the interest of the public at large.
[35] The writ of mandamus grew out of the necessity to compel the
inferior courts to exercise judicial and ministerial powers invested in A key principle to be observed in dealing with petitions for
them by restraining their excesses, preventing their negligence and mandamus is that such extraordinary remedy lies to compel the
restraining their denial of justice.[36] performance of duties that are purely ministerial in nature, not
those that are discretionary.[41] A purely ministerial act or duty is
one that an officer or tribunal performs in a given state of facts, in a
Over time, the writ of mandamus has been stripped of its highly prescribed manner, in obedience to the mandate of a legal
prerogative features and has been assimilated to the nature of an authority, without regard to or the exercise of its own judgment
ordinary remedy. Nonetheless, the writ has remained to be an upon the propriety or impropriety of the act done. The duty is
extraordinary remedy in the sense that it is only issued in ministerial only when its discharge requires neither the exercise of
extraordinary cases and where the usual and ordinary modes of official discretion or judgment.[42]
proceeding and forms of remedy are powerless to afford redress to
a party aggrieved, and where without its aid there would be a
failure of justice.[37] The petitioner's disregard of the foregoing fundamental requisites
for mandamus rendered its petition in the RTC untenable and
devoid of merit.

27
WHEREFORE, the Court DENIES the petition for review on certiorari; No.Section 4 of PD 1586 provides that  "no person, partnership or
and ORDERS the petitioner to pay the costs of suit. corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his
Tuesday, April 21, 2015 duly authorized representative." We note that LGU’s are juridical
persons.
Republic of the Philippines v. The City of Davao
HOWEVER, after consideration of the evidence finding Artica Sports
FACTS: Dome is not within an environmentally critical area neither being a
critical project. The said project is not classified as environmentally
critical, or within an environmentally critical area. Consequently, the
Respondent filed an application for a Certificate of Non-Coverage DENR has no choice but to issue the Certificate of Non-Coverage. It
(CNC) for its proposed project, the Davao City Artica Sports Dome, becomes its ministerial duty, the performance of which can be
with the Environmental Management Bureau however, was denied compelled by writ of mandamus, such as that issued by the trial
on the ground that the proposed project was within an court in the case at bar. 
environmentally critical area; that the City of Davao must first
BALICAS vs. FFIB, OFFICE OF THE OMBUDSMAN
undergo the environmental impact assessment (EIA) process to
secure an Environmental Compliance Certificate (ECC). Respondent MARCH 26, 2011 ~ VBDIAZ
then filed a petition for mandamus with the Regional Trial Court
(RTC), and the latter ruled in favor of respondent. BALICAS vs. FFIB, OFFICE OF THE OMBUDSMAN

G. R. No. 145972

ISSUE: March 23, 2004

WON the LGU’s are excluded from the coverage of PD 1586, one FACTS: In the development of the Cherry Hills Subdivision (CHS),
which requires an environmental impact assessment (EIA) process Philjas applied for the issuance of ECC from the DENR-Region IV
to secure an Environmental Compliance Certificate (ECC) Respondent BALICAS, PENRO senior environmental management
specialist, monitored the implementation of the CHS Project
Development to check compliance with the terms and conditions in
HELD: the ECC. She conducted another monitoring on the project for the

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same purpose. In both instances, she noted that the project was still Petitioner seasonably filed a petition for review of the Ombudsmans
in the construction stage hence, compliance with the stipulated decision with the CA. The Court of Appeals dismissed the
conditions could not be fully assessed, and therefore, a follow-up petition for lack of merit and affirmed the appealed decision. It
monitoring is proper. It appeared from the records that this August found that the landslide was a preventable occurrence and that
23, 1995 monitoring inspection was the last one conducted by the petitioner was guilty of gross negligence in failing to closely monitor
DENR. Philjas compliance with the conditions of the ECC given the known
inherent instability of the ground where the subdivision was
Immediately after the tragic incident on August 3, 1999, a fact- developed. The appellate court likewise denied petitioners motion
finding investigation was conducted by the Office of the for reconsideration.
Ombudsman through its Fact-Finding and Intelligence Bureau (FFIB),
which duly filed an administrative complaint with the Office of the This petition for review on certiorari
Ombudsman against several officials of the Housing and Land Use
ISSUE: WON Balicas is guilty of gross neglect of duty
Regulatory Board (HLURB), Department of Environment and Natural
Resources (DENR), and the local government of Antipolo. HELD: the petition is hereby GRANTED, The CA decision affirming
the Ombudsmans dismissal of petitioner IGNACIA BALICAS from
The charge against petitioner involved a supposed failure on her
part to monitor and inspect the development of CHS, which was office is REVERSED and SET ASIDE, and petitioners REINSTATEMENT
to her position with back pay and without loss of seniority rights is
assumed to be her duty as DENR senior environmental management
specialist assigned in the province of Rizal. hereby ordered.

NO
For her part, petitioner belied allegations that monitoring was not
conducted, claiming that she monitored the development of CHS as In order to ascertain if there had been gross neglect of duty, we
evidenced by 3 monitoring reports .She further claimed good faith have to look at the lawfully prescribed duties of petitioner.
and exercise of due diligence, insisting that the tragedy was a Unfortunately, DENR regulations are silent on the specific duties of
fortuitous event. She reasoned that the collapse did not occur in a senior environmental management specialist. Internal regulations
Cherry Hills, but in the adjacent mountain eastern side of the merely speak of the functions of the Provincial Environment and
subdivision. Natural Resources Office (PENRO) to which petitioner directly
The Office of the Ombudsman rendered a decision imposing upon reports.
petitioner the supreme penalty of dismissal from office for gross Tthe monitoring duties of the PENRO mainly deal with broad
neglect of duty. environmental concerns, particularly pollution abatement. This

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general monitoring duty is applicable to all types of physical (b) establish ambient environmental quality standards;
developments that may adversely impact on the environment,
whether housing projects, industrial sites, recreational facilities, or (c) develop a program of environmental enhancement or
protective measures against calamitous factors such as
scientific undertakings.
earthquake, floods, water erosion and others; and
However, a more specific monitoring duty is imposed on the HLURB
(d) perform such other functions as may be directed by the
as the sole regulatory body for housing and land development.
President from time to time.
P.D. No. 1586 prescribes the following duties on the HLURB (then
The legal duty to monitor housing projects, like the CHP, against
Ministry of Human Settlements) in connection with environmentally
critical projects requiring an ECC: calamities such as landslides due to continuous rain, is clearly
placed on the HLURB, not on the petitioner as PENRO senior
SECTION 4. Presidential Proclamation of Environmentally Critical environmental management specialist. In fact, the law imposes no
Areas and Projects. The President of the Philippines may, on his own clear and direct duty on petitioner to perform such narrowly
initiative or upon recommendation of the National Environment defined monitoring function.
Protection Council, by proclamation declare certain projects,
ANTONIO G. PRINCIPE v. FACT-FINDING, GR No. 145973, 2002-01-23
undertakings or areas in the country as environmentally critical. No
person, partnership or corporation shall undertake or operate any Facts:
such declared environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by the Philjas Corporation, whose primary purposes, among others are: to
President or his duly authorized representative. For the proper own, develop, subdivide, market and provide low-cost housing for
management of said critical project or area, the President may by the poor, was registered with the Securities and Exchange
his proclamation reorganize such government offices, agencies, Commission (SEC).
institutions, corporations or instrumentalities including the re-
City Mayor
alignment of government personnel, and their specific functions
and responsibilities. Garcia, endorsed to the Housing and Land Use Regulatory Board
(HLURB) the proposed CHS.
For the same purpose as above, the Ministry of Human Settlements
[now HLURB] shall: sed on the favorable recommendation of Mayor Garcia, respondent
TAN, issued the Preliminary Approval and Locational Clearance
(a) prepare the proper land or water use pattern for said critical
(PALC) for the development of CHS.
project(s) or area(s);

30
Three (3) days thereafter... respondent JASARENO, allowed/granted Issues:
the leveling/earth-moving operations of the development project of
the area... subject to certain conditions. whether the Ombudsman may dismiss petitioner from the service
on an administrative charge for gross neglect of duty, initiated,
Eventually... respondent POLLISCO issued Small Scale Mining Permit investigated and decided by the Ombudsman himself without
(SSMP)... to Philjas to extract and remove 10,000 cu. meters of substantial evidence to support his finding of gross neglect of duty...
filling materials from the area where the CHS is located. because the duty to monitor and inspect the project was not vested
in petitioner.
espondent MAGNO, informed
Ruling:
Philjas that CHS is within the EIS System and as such must secure
ECC from the DENR.  Philjas was accordingly informed of the matter The Ombudsman without taking into consideration the lawfully
such that it applied for the issuance of ECC from the mandated duties and functions attached to petitioner's position,
immediately concluded that as the signing and approving authority
DENR of the ECC issued to PHILJAS, it was incumbent upon petitioner to
Philjas application for ECC was approved by respondent PRINCIPE, conduct actual... monitoring and enforce strict compliance with the
then Regional Executive Director, DENR terms and conditions of the ECC.

"Records further disclosed that... respondent BALICAS monitored The applicable administrative orders provide that the function of
the implementation of the CHS Project Development to check monitoring environmental programs, projects and activities in the
compliance with the terms and conditions in the ECC.  Again,... , she region is lodged with the Regional Technical Director, not with the
conducted another monitoring on the project for... the same Regional Executive Director, the position occupied by petitioner. 
purpose.  In both instances, she noted that the project was still in Under
the construction stage hence, compliance with the stipulated DAO 38-1990, the following were the functions attached to the
conditions could not be fully assessed, and therefore, a follow-up office of petitioner, to wit:
monitoring inspection was the last one conducted by the DENR.
Clearly, there is no mention of the responsibility of a regional
On executive director to monitor projects.
1999, the Ombudsman rendered a decision finding petitioner More apropos is the description of the functions of a regional
Principe administratively liable for gross neglect of duty and technical director, to wit:
imposing upon him the penalty of dismissal from office.

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Supervises, coordinates and monitors the implementation of
environmental programs, projects and activities in the region."

Furthermore,... monitoring... is the function of the PENR and CENR

offices as mandated in DAO No. 37, Series of 1996.

Hence, how could petitioner be guilty of neglecting a duty, which is

not even his to begin with?  Administrative liability could not be
based on the fact that petitioner was the person who signed and
approved the ECC, without proof of actual act or omission
constituting... neglect of duty.

In the absence of substantial evidence of gross neglect of petitioner,

administrative liability could not be based on the principle of
command responsibility.

The negligence of petitioner's subordinates is not tantamount to his

own negligence.

WHEREFORE, the Court REVERSES the decision of the Court of

Appeals.

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