2/2/25, 12:16 AM [ G.R. No. 189185.

August 16, 2016 ]

793 Phil. 17 ← click for PDF copy

EN BANC
[ G.R. No. 189185. August 16, 2016 ]
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA
LAWAGON, CRISPIN ALCOMENDRAS, CORAZON SABINADA,
VIRGINIA CATA-AG, FLORENCIA SABANDON, AND LEDEVINA
ADLAWAN, PETITIONERS, VS. PILIPINO BANANA GROWERS &
EXPORTERS ASSOCIATION, INC., DAVAO FRUITS CORPORATION,
AND LAPANDAY AGRICULTURAL AND DEVELOPMENT
CORPORATION, RESPONDENTS.
[G.R. No. 189305]
CITY GOVERNMENT OF DAVAO, PETITIONER, VS. COURT OF
APPEALS, PILIPINO BANANA GROWERS & EXPORTERS
ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION, AND
LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION,
RESPONDENTS.
DECISION

BERSAMIN, J.:

This appeal through the consolidated petitions for review on certiorari assails the decision
promulgated on January 9, 2009[1] whereby the Court of Appeals (CA) reversed and set aside
the judgment rendered on September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in
Davao City upholding the validity and constitutionality of Davao City Ordinance No. 0309-07,
to wit:

WHEREFORE, premises considered, the appeal is GRANTED. The assailed

September 22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial
Region, Branch 17, Davao City, upholding the validity and constitutionality of
Davao City Ordinance No. 0309-07, is hereby REVERSED and SET ASIDE.

FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the
City Government of Davao, and any other person or entity acting in its behalf, from
enforcing and implementing City Ordinance No. 0309-07, is hereby made
permanent.

SO ORDERED.

Antecedents

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After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to impose
a ban against aerial spraying as an agricultural practice by all agricultural entities within Davao
City, viz.:

ORDINANCE NO. 0309-07

Series of 2007

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL

PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL
ENTITIES IN DAVAO CITY

Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled

that:

SECTION 1. TITLE. This Ordinance shall be known as "An Ordinance Banning

Aerial Spraying as an Agricultural Practice in all Agricultural Activities by all
Agricultural Entities in Davao City";

SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to
eliminate the method of aerial spraying as an agricultural practice in all agricultural
activities by all entities within Davao City;

SECTION 3. DEFINITION OF TERMS:

a. Aerial Spraying - refers to application of substances through the use of aircraft of

any form which dispenses the substances in the air.

b. Agricultural Practices - refer to the practices conducted by agricultural entities in

relation to their agricultural activities;

c. Agricultural Activities - refer to activities that include, but not limited to, land
preparation, seeding, planting, cultivation, harvesting and bagging;

d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural

activities

e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of
agricultural farms/plantations that need special monitoring to avoid or minimize
harm to the environment and inhabitants pursuant to policies and guidelines set forth
in this Ordinance and other government regulations. It is an area of land that must lie
within the property which does not include public lands, public thoroughfares or
adjacent private properties. It must be planted with diversified trees that grow taller
than what are usually planted and grown in the plantation to protect those within the
adjacent fields, neighboring farms, residential area, schools and workplaces.

SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance

shall apply to all agricultural entities within the territorial jurisdiction of Davao City;
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SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be

strictly enforced in the territorial jurisdiction of Davao City three (3) months after
the effectivity of this Ordinance.

SECTION 6. BUFFER ZONE - Consistent with national legislation and government

regulations, all agricultural entities must provide for a thirty (30) meter buffer zone
within the boundaries of their agricultural farms/plantations. This buffer zone must
be properly identified through Global Positioning System (GPS) survey. A survey
plan showing the metes and bounds of each agricultural farm/plantation must be
submitted to the City Mayor's Office, with the buffer zone clearly identified therein;

SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance

shall be punished as follows:

a. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month
but not more than three (3) months;

b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3)
months but not more than six (6) months and suspension of City-issued permits and
licenses for one (1) year;

c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months
but not more than one (1) year and perpetual cancellation of City issued permits and
licenses;

Provided, that in case the violation has been committed by a juridical person, the
person in charge of the management thereof shall be held liable;

SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or

inconsistent with any of the provisions of this Ordinance shall be deemed amended
or repealed accordingly.

SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from
its publication in a newspaper of general circulation in Davao City;

ENACTED, January 23, 2007 by a majority vote of all the Members of the
Sangguniang Panlungsod.[2]

City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007.[3] The ordinance took
effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.[4] Pursuant
to Section 5 of the ordinance, the ban against aerial spraying would be strictly enforced three
months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its
members, namely: Davao Fruits Corporation and Lapanday Agricultural and Development
Corporation (PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality of
the ordinance, and to seek the issuance of provisional reliefs through a temporary restraining
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order (TRO) and/or writ of preliminary injunction.[5] They alleged that the ordinance
exemplified the unreasonable exercise of police power; violated the equal protection clause;
amounted to the confiscation of property without due process of law; and lacked publication
pursuant] to Section 511[6] of Republic Act No. 7160 (Local Government Code).

On May 8, 2007, the residents living within and adjacent to banana plantations in Davao City
led by Wilfredo Mosqueda,[7] joined by other residents of Davao City,[8] (Mosqueda, et al.)
submitted their Motion for Leave to Intervene and Opposition to the Issuance of a Preliminary
Injunction.[9] The RTC granted their motion on June 4, 2007.[10]

On June 20, 2007, the RTC granted the prayer for issuance of the writ of preliminary injunction,
and subsequently issued the writ.[11]

Judgment of the RTC

On September 22, 2007, after trial, the RTC rendered judgment declaring Ordinance No. 0309-
07 valid and constitutional, decreeing thusly:

WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and

constitutional in all aspect of the grounds assailed by the petitioner, said [C]ity
[O]rdinance No. 0309-07, is sustained of its validity and constitutionality.

Accordingly, the order of this court dated June 20, 2007, granting the writ of
preliminary injunction as prayed for by petitioner is ordered cancelled and set aside
as a result of this decision.

SO ORDERED.[12]

The RTC opined that the City of Davao had validly exercised police power[13] under the
General Welfare Clause of the Local Government Code;[14] that the ordinance, being based on a
valid classification, was consistent with the Equal Protection Clause; that aerial spraying was
distinct from other methods of pesticides application because it exposed the residents to a higher
degree of health risk caused by aerial drift;[15] and that the ordinance enjoyed the presumption
of constitutionality, and could be invalidated only upon a clear showing that it had violated the
Constitution.[16]

However, the RTC, recognizing the impracticability of the 3-month transition period under
Section 5 of Ordinance No. 0309-07, recommended the parties to agree on an extended
transition period.[17]

Decision of the CA

PBGEA, et al. appealed,[18] and applied for injunctive relief from the CA,[19] which granted the
application[20] and consequently issued a TRO to meanwhile enjoin the effectivity of the
ordinance.[21]
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On January 9, 2009, the CA promulgated its assailed decision reversing the judgment of the
RTC.[22] It declared Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being
unreasonable and oppressive; found the three-month transition period impractical and
oppressive in view of the engineering and technical requirements of switching from aerial
spraying to truck-mounted boom spraying; and opined that the ban ran afoul with the Equal
Protection Clause inasmuch as Section 3(a) of the ordinance - which defined the term aerial
spraying - did not make reasonable distinction between the hazards, safety and beneficial effects
of liquid substances that were being applied aerially; the different classes of pesticides or
fungicides; and the levels of concentration of these substances that could be beneficial and could
enhance agricultural production.

The CA did not see any established relation between the purpose of protecting the public and the
environment against the harmful effects of aerial spraying, on one hand, and the imposition of
the ban against aerial spraying of all forms of substances, on the other. It ruled that the
maintenance of the 30-meter buffer zone within and around the agricultural plantations under
Section 6 of Ordinance No. 0309-07 constituted taking of property without due process because
the landowners were thereby compelled to cede portions of their property without just
compensation; that the exercise of police power to require the buffer zone was invalid because
there was no finding that the 30-meter surrounding belt was obnoxious to the public welfare;
and that, accordingly, Ordinance No. 0309-07 was unconstitutional because of the absence of a
separability clause.

The City of Davao and the intervenors filed their respective motions for reconsideration, but the
CA denied the motions on August 7, 2009.[23]

Hence, the separate, but now consolidated, appeals by petition for review on certiorari.

Issues

In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds, namely:

THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND

CONCEPTS OF LAW WHICH, PROPERLY CONSIDERED, NECESSARILY
LEAD TO THE CONCLUSION THAT THE DAVAO ORDINANCE IS
CONSTITUTIONAL AND VALID

II

THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL

PROTECTION CLAUSE

III

THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN

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REASONABLY RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE

IV

THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY

REASONABLE AND FAIR

THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE

[SIC] CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID
EXERCISE OF POLICE POWER

Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human
rights over property rights and the presumption of validity in favor of the ordinance; that the CA
preferred the preservation of the profits of respondents PBGEA, et al. to the residents' right to
life, health and ecology,[24] thereby disregarding the benevolent purpose of the ordinance; that
the CA assumed the functions of the lawmaker when it set aside the wisdom behind the
enactment of the ordinance; that the CA failed to apply the precautionary principle, by which the
State was allowed to take positive actions to prevent harm to the environment and to human
health despite the lack of scientific certainty; that the CA erred in applying the "strict scrutiny
method" in holding that the ordinance violated the Equal Protection Clause because it only
thereby applied in reviewing classifications that affected fundamental rights; that there was
nothing wrong with prohibiting aerial spraying per se considering that even the aerial spraying
of water produced drift that could affect unwilling neighbors whose, constitutional right to a
clean and healthy environment might be impinged;[25] that as far as the three-month period was
concerned, the CA should have considered that manual spraying could be conducted while the
PBGEA, et al. laid down the preparations for the conduct of boom spraying;[26] that
"reasonableness" could be more appropriately weighed by balancing the interests of the parties
against the protection of basic rights, like the right to life, to health, and to a balanced and
healthful ecology;[27] that PBGEA, et al. did not substantiate their claim of potential profit
losses that would result from the shift; that business profits should remain inferior and
subordinate to their fundamental rights as residents of Davao City, which were the rights that the
assailed ordinance has sought to protect;[28] that PBGEA, et al. did not explore other modes of
pesticide treatment either as a stop-gap or as a temporary measure while shifting to truck
mounted boom spraying;[29] that the imposition of the 30-meter buffer zone was a valid exercise
of police power that necessarily flowed from the protection afforded by the ordinance from the
unwanted effects of ground spraying; that the imposition of the buffer zone did not constitute
compensable taking under police power, pursuant to the pronouncements in Seng Kee & Co. v.
Earnshaw and Piatt[30] Patalinghug v. Court of Appeals,[31] and Social Justice Society (SJS) v.
Atienza, Jr.;[32] and that the 30-meter buffer zone conformed with the ISO 14000[33] and the
DENR Environmental Compliance Certificate (ECC) requirement.[34]

In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be
considered and resolved, to wit:

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WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007
IS OPPRESSIVE AND AN UNREASONABLE EXERCISE OF DELEGATED
POLICE POWER

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION;

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF
PROPERTY WITHOUT COMPENSATION, THUS, VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE CONSTITUTION

IV

WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE

PEOPLE AND THE ENVIRONMENT

The City of Davao explains that it had the authority to enact the assailed ordinance because it
would thereby protect the environment and regulate property and business in the interest of the
general welfare pursuant to Section 458 of the Local Government Code;[35] that the ordinance
was enacted to carry out its mandate of promoting the public welfare under the General Welfare
Clause (Section 16 of the Local Government Code); that the ordinance did not violate the Equal
Protection Clause because the distinction lies in aerial spray as a method of application being
more deleterious than other modes; that aerial spraying produces more drift that causes
discomfort, and an extremely offensive and obnoxious experience the part of the residents; that
spray drift cannot be controlled even with use by the respondents of highly advanced apparatus,
such as the Differential Global Positioning System, Micronair Rotary Drift Control Atomizers,
Intellimap, Intelliflow Spray Valve System, Control and Display Unit and the Target Flow Spray
Valve Switch System;[36] that because of the inherent toxicity of Mancozeb (the fungicide
aerially applied by the respondents), there is no need to provide for a substantial distinction
based on the level of concentration;[37] that as soon as fungicides are released in the air, they
become air pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act
of 1999),[38] and the activity thus falls under the authority of the local government units to ban;
and that the ordinance does not only seek to protect and promote human health but also serves
as a measure against air pollution.

The City of Davao insists that it validly exercised police power because it does not thereby
oblige the shift from aerial to truck-mounted boom spraying; that the respondents only choose
boom spraying to justify the alleged impracticability of the transition period by erroneously

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adding the months required for each of the stages without considering other steps that may be
simultaneously undertaken;[39] that the Court should apply its ruling in Social Justice Society v.
Atienza, Jr.,[40] by which the six-month period for the folding-up of business operations was
declared a legitimate exercise of police power; that the respondents did not present any
documentary evidence on the feasibility of adopting other methods;[41] that only 1,800 hectares
out of 5,200 hectares of plantations owned and operated by PBGEA's members use aerial
spraying, hence, the perceived ominous consequence of imposing a ban on aerial spray to the
banana industry is entirely misleading;[42] that the urgency of prohibiting aerial spray justifies
the three-month transition period; that the complaints of the community residents - ranging from
skin itchiness, contraction and/or tightening in the chest, nausea, appetite loss and difficulty in
breathing after exposure to spray mist - only prove that aerial spraying brings discomfort and
harm to the residents; that considering that the testimony of Dr. Lynn Crisanta R. Panganiban, a
pharmacologist and toxicologist, established that fungicides could cause debilitating effects on
the human body once inhaled or digested, the CA erred in holding that there was no correlation
between aerial application and the complaints of the residents; that given that aerial spray
produces more drift and is uncontrollable compared to the other methods of applying fungicides,
the ordinance becomes reasonable;[43] and that the medical-related complaints of the residents
need not be proven by medical records considering that these were based on personal
knowledge.[44]

The City of Davao contends that the imposition of the 30-meter buffer zone is a valid exercise
of police power, rendering the claim for just compensation untenable; that the maintenance of
the buffer zone does not require the respondents to cede a portion of their landholdings; that the
planting of diversified trees within the buffer zone will serve to insulate the residents from spray
drift; that such buffer zone does not deprive the landowners of the lawful and beneficial use of
their property;[45] and that the buffer zone is consistent with the Constitution, which reminds
property owners that the use of property bears a social function.[46]

In their comment, the respondents posit that the petition of the City; of Davao should be
dismissed for failure to attach material portions of the records, and for raising factual errors that
are not within the realm of this appeal by petition for review on certiorari;[47] that the CA
correctly declared the ordinance as unreasonable due to the impossibility of complying with the
three-month transition period; that shifting from aerial to truck-mounted boom spraying will
take at least three years and entails careful planning, equipment and machineries, civil works,
and capital funding of at least P400,000,000.00;[48] that the Court could rely on its ruling in City
of Manila v. Laguio, Jr.,[49] where an ordinance directing an existing establishment to wind up
or to transfer its business was declared as confiscatory in nature, and, therefore,
unconstitutional;[50] that the total ban against aerial spraying, coupled with the inadequate time
to shift to truck-mounted boom spraying, effectively deprives the respondents with an efficient
means to control the spread of the Black Sigatoka disease that threatens the banana plantations;
that the ordinance will only expose the plantations to the virulent disease that is capable of
infecting 60% of the plantations on a single cycle[51] missed;[52] that compared with other
modes of application, aerial spraying is more cost-efficient, safe and accurate; that truck-
mounted boom spraying, for instance, requires 80-200 liters of solution per hectare,[53] while

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manual spraying uses 200-300 liters of solution per hectare; that aerial spraying oily requires 30
liters per hectare; that in terms of safety and accuracy, manual spraying is the least safe and
accurate,[54] and produces more drift than aerial spraying;[55] that due to the 300-liter solution
required, the workers will be more exposed to the solution during manual application and such
application will thus be more in conflict with the purpose of the ordinance to prevent human
exposure;[56] that the respondents also find the irrigation sprinklers suggested by the City of
Davao as wasteful, unsafe and impractical because it cannot provide the needed coverage for
application of the solution to effectively control. the Black Sigatoka disease; that in contrast,
aerial application, coupled with the latest state of the art technology and equipment, ensures
accuracy, effectiveness, efficiency and safety compared to the other methods of application; that
the respondents vouch for the safety of the fungicides they use by virtue of such fungicides
having been registered with the Fertilizer and Pesticide Authority (FPA) and classified as
Category IV,[57] and found to be mild; and that oral ingestion in large doses is required before
any adverse effects to humans may result.[58]

The respondents lament that the ban was imposed without any scientific basis; that the report[59]
prepared by a fact-finding team (composed of the Vice Mayor, the City Health Officer, The City
Planning and Development Coordinator and the Assistance City Planning and Development
Coordinator) organized by the City of Davao revealed that there was no scientific evidence to
support the clamor for the ban against aerial spraying; that furthermore, national government
agencies like the Department of Agriculture (DA), Department of Health (DOR) and the
Department of Trade and Industry (DTI) similarly concluded that there was no scientific
evidence to support the ban;[60] that for four decades since the adoption of aerial spraying, there
has been no reported outbreak or any predisposition to ailment connected with the pesticides
applied; that the testimonies of the residents during the trial were mere "emotional anecdotal
evidence" that did not establish any scientific or medical bases of any causal connection
between the alleged health conditions complained of and the fungicides applied during aerial
spraying;[61] that the allegations of health and environmental harm brought by the pesticides
used to treat the banana plantations were unfounded; that the 2001 study of the International
Agency for Research on Cancer showed that, contrary to the claim of Dra. Panganiban, the by-
product of Mancozeb (Ethylenethiourea or ETU) was "non-genotoxic" and not expected to
produce thyroid cancer;[62] that Carlos Mendoza, a geo-hydrologist and geophysicist, testified
that underground water contamination through aerial spraying would be impossible because of
the presence of latex, thick layers of clay and underlying rock formations;[63] that even the
study conducted by the Philippine Coconut Authority (PCA) showed that the rhinoceros beetle
infestation in coconut plantations adjacent to the banana plantations was due to the farmer's
failure to observe phyto-sanitary measures, not to aerial spraying;[64] that furthermore, aerial
spraying is internationally accepted as a "Good Agricultural Practice" (GAP)[65] under the
International Code of Conduct on the Distribution and Use of Pesticides by the United Nations-
Food and Agricultural Organization (UN-FAO); that as such, they observe the standards laid
down by the UN-FAO, and utilize aerial spraying equipment that will ensure accuracy, safety
and efficiency in applying the substances, and which more than complies with the requirement
under the Guidelines on Good Practice for Aerial Application of Pesticides (Rome 2001);[66]
that in addition, they strictly observe standard operating procedures prior to take-off,[67] in-

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flight[68] and post-flight;[69] that they substantially invested in state-of-the-art technology and
equipment designed to ensure safety, accuracy, and effectiveness of aerial spraying operations,
to avoid aerial drift;[70] that their equipment include: wind meters (to measure the wind velocity
in a specific area), wind cones (to determine the wind direction, and whether the wind is a
headwind, tailwind or a crosswind); central weather station (to measure wind speed, the
temperature and relative humidity), Differential Global Positioning System (DGPS),[71]
Intellimap,[72] Control and Display Unit,[73] Micronair Rotary Drift Control Atomizers (AU
5000 Low-Drift model),[74] Intelliflow Spray Valve System,[75] and Target Flow Spray Valve
Switch System;[76] and that they want to minimize, if not, eliminate the occurrence of spray
drift in order to minimize wastage of resources and reduced efficiency of spraying programs
implemented to control the Black Sigatoka disease.[77]

The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying as a method
of application, instead of the substances being used therein; that the prohibition is overbroad in
light of other available reasonable measures that may be resorted to by the local government;
that the ordinance is unreasonable, unfair, oppressive, and tantamount to a restriction or
prohibition of trade;[78] that the ordinance will effectively impose a prohibition against all
pesticides, including fungicides that fall under the mildest type of substance; that as such, the
petitioner has disregarded existing valid and substantive classifications established and
recognized by the World Health Organization (WHO) that are adopted by the FPA; that the FPA
is the national agency armed with the professional competence, technical expertise, and legal
mandate to deal with the issue of use and application of pesticides in our country; that the
fungicides they administer are duly registered with the FPA, and with other more developed
countries that have observed a stricter environmental and public health regulation such as the
United States Environmental Protection Agency (EPA) and the European Union (EU); that as
such, the City of Davao has disregarded valid, substantial and significant distinctions between
levels of concentration of the fungicides in the water solution aerially sprayed; that it is the FPA
that regulates the level of concentration of agricultural chemicals prior to commercial
distribution and use in the country; that the members of PBGEA only spray a water solution
(water cocktail) containing 0.1 liter to 1.5 liters of the active ingredient of fungicide in a 30-liter
water solution per hectare that has undergone rigorous testing and .evaluation prior to
registration by the FPA; that the active ingredients of the fungicide are so diluted that no harm
may be posed to public health or to the environment through aerial application;[79] that the
ordinance was so broad that it prohibits aerial application of any substance, including water;[80]
and that aside from fungicides, the respondents also aerially apply vitamins, minerals and
organic fertilizers.[81]

The respondents submit that the maintenance of the 30-meter buffer zone under Section 5 of the
ordinance constitutes an improper exercise of police power; that the ordinance will require all
landholdings to maintain the buffer zone, thereby diminishing to a mere 1,600 square meters of
usable and productive land for every hectare of the plantation bounding residential areas, with
the zone being reserved for planting "diversified trees;" that this requirement amounts to taking
without just compensation or due process; and that the imposition of the buffer zone unduly
deprives all landowners within the City of Davao the beneficial use of their property;[82] that the
precautionary principle cannot be applied blindly, because its application still requires some
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scientific basis; that the principle is also based on a mere declaration that has not even reached
the level of customary international law, not on a treaty binding on the Government.[83]

The respondents argue that the illegality of the transition period results in the invalidity of the
ordinance as it does not carry a separability clause; and that the absence of such clause signifies
the intention of the Sangguniang Panlungsod of City of Davao to make the ordinance effective
as a whole.[84]

The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due process and
equal protection grounds for being unreasonable and oppressive, and an invalid exercise of
police power: (a) in imposing a ban on aerial spraying as an agricultural practice in Davao City
under Section 5; (b) in decreeing a 3-month transition-period to shift to other modes of pesticide
application under Section 5; and (c) in requiring the maintenance of the 30-meter buffer zone
under Section 6 thereof in all agricultural lands in Davao City.

Ruling of the Court

We deny the petitions for review for their lack of merit.

I
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security

There is no question that the implementation of Ordinance No. 0309-07, although the ordinance
concerns the imposition of the ban against aerial spraying in all agricultural lands within Davao
City, will inevitably have a considerable impact on the country's banana industry, particularly on
export trading.

Banana exportation plays a significant role in the maintenance of the country's economic,
stability and food security. Banana is a consistent dollar earner and the fourth largest produced
commodity in the Philippines.[85] In 2010, the Philippines figured among the top three banana
producing countries in the world.[86] In 2014, fresh bananas accounted for 17% of the country's
top agricultural export commodities, gaining a close second to coconut oil with 18%.[87] The
Davao Region (Region XI)[88] was the top banana producing region in 2013, with a production
growth rate of 16.4%, and 33.76% share in the total agricultural output of the Region.[89]

Despite these optimistic statistics, the banana industry players struggle to keep up with the
demands of the trade by combatting the main threat to production posed by two major fungal
diseases: the Panama Disease Tropical Race 4 (Fusarium oxysprum f.sp. cubense) and the Black
Sigatoka leaf spot disease (Mycosphaerella ffiensis morelet). Pesticides have proven to be
effective only against the Black Sigatoka disease. There is yet no known cure for the Panama
disease.[90]

The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes
destruction of the plant by significantly reducing the leaf area, leading to premature ripening of
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the produce and resulting in yield losses of at least 50%.[91] Due to its effects on banana export
trading, the disease has emerged as a global concern that has correspondingly forced banana
producers to increase the use of chemical pesticides.[92] Protectant fungicides such as
Mancozeb, chlorothalonil and Propiconazole are applied to combat the disease.[93] These
agricultural chemicals are aerially applied by the respondents in the banana plantations within
the jurisdiction of Davao City to arrest the proliferation of the disease.

Considering that banana export plantations exist in vast monocultures, effective treatment of the
Black Sigatoka disease is done by frequent aerial application of fungicides. This is an expensive
practice because it requires permanent landing strips, facilities for the mixing and loading of
fungicides, and high recurring expense of spray materials.[94] The cost of aerial spraying
accounts to 15-20% of the final retail price of the crop, making the technology essentially
unavailable to small landholdings that are more vulnerable to the disease.[95]

Aerial spraying has become an agricultural practice in Davao City since the establishment of the
banana plantations in 1960.[96] Out of the 5,205 hectares of commercial plantations devoted to
Cavendish banana being operated by the respondents in Davao City,[97] around 1,800 hectares
receive treatment through aerial application. These plantations are situated in Barangays Sirib,
Manuel Guianga, Tamayong, Subasta Dacudao, Lasang, Mandug, Waan, Tigatto and Callawa,
[98] and are affected by the ban imposed by Ordinance No. 0309-07. The DTI has issued a
statement to the effect that the ban against aerial spraying in banana plantations "is expected to
kill the banana industry," affects the socio-economic development of the barangays hosting the
affected plantations, and has a disastrous impact on export trading. The DTI has forecasted that
the ban would discourage the entry of new players in the locality, which would have a potential
drawback in employment generation.[99]

II
The Sangguniang Bayan of Davao City
enacted Ordinance No. 0309-07
under its corporate powers

The petitioners assert that Ordinance No. 0309-07 is a valid act of the Sangguniang Bayan of
Davao City- pursuant to its delegated authority to exercise police power in the furtherance of
public welfare and in ensuring a sound and balanced environment for its constituents. The
respondents negate this assertion, describing the ordinance as unreasonable, discriminatory and
oppressive.

The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is upheld.

To be considered as a valid police power measure, an ordinance must pass a two-pronged test:
the formal (i.e., whether the ordinance is enacted within the corporate powers of the local
government unit, and whether it is passed in accordance with the procedure prescribed by law);
and the substantive (i.e., involving inherent merit, like the conformity of the ordinance with the
limitations under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy).[100]

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The formalities in enacting an ordinance are laid down in Section 53[101] and Section 54[102] of
The Local Government Code. These provisions require the ordinance to be passed by the
majority of the members of the sanggunian concerned, and to be presented to the mayor for
approval. With no issues regarding quorum during its deliberation having been raised, and with
its approval of by City Mayor Duterte not being disputed, we see no reason to strike down
Ordinance No. 0309-07 for non-compliance with the formal requisites under the Local
Government Code.

We next ascertain whether the City of Davao acted within the limits of its corporate powers in
enacting Ordinance No. 0309-07.

The corporate powers of the local government unit confer the basic authority to enact legislation
that may interfere with personal liberty, property, lawful businesses and occupations in order to
promote the general welfare.[103] Such legislative powers spring from the delegation thereof by
Congress through either the Local Government Code or a special law. The General Welfare
Clause in Section 16 of the Local Government Code embodies the legislative grant that enables
the local government unit to effectively accomplish and carry out the declared objects of its
creation, and to promote and maintain local autonomy.[104] Section 16 reads:

Sec. 16. General Welfare. — Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which
are essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support among other
things, the preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.

Section 16 comprehends two branches of delegated powers, namely: the general legislative
power and the police power proper. General legislative power refers to the power delegated by
Congress to the local legislative body, or the Sangguniang Panlungsod in the case of Dayao
City,[105] to enable the local legislative body to enact ordinances and make regulations. This
power is limited in that the enacted ordinances must not be repugnant to law, and the power
must be exercised to effectuate and discharge the powers and duties legally conferred to the
local legislative body. The police power proper, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the local government unit and its
constituents, and for the protection of their property.[106]

Section 458 of the Local Government Code explicitly vests the local government unit with the
authority to enact legislation aimed at promoting the general welfare, viz.:

Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve

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resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code. x x x

In terms of the right of the citizens to health and to a balanced and healthful ecology, the local
government unit takes its cue from Section 15 and Section 16, Article II of the 1987
Constitution. Following the provisions of the Local Government Code and the Constitution, the
acts of the local government unit designed to ensure the health and lives of its constituents and
to promote a balanced and healthful ecology are well within the corporate powers vested in the
local government unit. Accordingly, the Sangguniang Bayan of Davao City is vested with the
requisite authority to enact an ordinance that seeks to protect the health and well-being of its
constituents.

The respondents pose a challenge against Ordinance No. 0309-07 on the ground that the
Sangguniang Bayan of Davao City has disregarded the health of the plantation workers,
contending that by imposing the ban against aerial spraying the ordinance would place the
plantation workers at a higher health risk because the alternatives of either manual or truck-
boom spraying method would be adopted; and that exposing the workers to the same risk sought
to be prevented by the ordinance would defeat its purported purpose.

We disagree with the respondents.

With or without the ban against aerial spraying, the health and safety of plantation workers are
secured by existing state policies, rules and regulations implemented by the FPA, among others,
which the respondents are lawfully bound to comply with. The respondents even manifested
their strict compliance with these rules, including those in the UN-FAO Guidelines on Good
Practice for Aerial Application of Pesticides (Rome 2001). We should note that the Rome 2001
guidelines require the pesticide applicators to observe the standards provided therein to ensure
the health and safety of plantation workers. As such, there cannot be any imbalance between the
right to health of the residents vis-a-vis the workers even if a ban will be imposed against aerial
spraying and the consequent adoption of other modes of pesticide treatment.

Furthermore, the constitutional right to health and maintaining environmental integrity are
privileges that do not only advance the interests of a group of individuals. The benefits of
protecting human health and the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of the Constitution. In Oposa v.
Factoran, Jr.[107] we declared that the right to a balanced and healthful ecology under Section
16 is an issue of transcendental importance with intergenerational implications. It is under this
milieu that the questioned ordinance should be appreciated.

Advancing the interests of the residents who are vulnerable to the alleged health risks due to
their exposure to pesticide drift justifies the motivation behind the enactment of the ordinance.
The City of Davao has the authority to enact pieces of legislation that will promote the general
welfare, specifically the health of its constituents. Such authority should not be construed,
however, as a valid license for the City of Davao to enact any ordinance it deems fit to discharge
its mandate. A thin but well-defined line separates authority to enact legislations from the
method of accomplishing the same.

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By distinguishing authority from method we face this question: Is a prohibition against aerial
spraying a lawfully permissible method that the local government unit of Davao City may adopt
to prevent the purported effects of aerial drift? To resolve this question, the Court must dig
deeper into the intricate issues arising from these petitions.

II
Ordinance No. 0309-07 violates the Due Process Clause

A valid ordinance must not only be enacted within the corporate powers of the local government
and passed according to the procedure prescribed by law.[108] In order to declare it as a valid
piece of local legislation, it must also comply with the following substantive requirements,
namely: (1) it must not contravene the Constitution or any statute; (2) it must be fair, not
oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but may regulate
trade; (5) it must be general and consistent with public policy; and (6) it must not be
unreasonable.[109]

In the State's exercise of police power, the property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives of the Government.[110] A local
government unit is considered to have properly exercised its police powers only if it satisfies the
following requisites, to wit: (1) the interests of the public generally, as distinguished from those
of a particular class, require the interference of the State; and (2) the means employed are
reasonably necessary for the attainment of the object sought to be accomplished and not unduly
oppressive.[111] The first requirement refers to the Equal Protection Clause of the Constitution;
the second, to the Due Process Clause of the Constitution.[112]

Substantive due process requires that a valid ordinance must have a sufficient justification for
the Government's action.[113] This means that in exercising police power the local government
unit must not arbitrarily, whimsically or despotically enact the ordinance regardless of its
salutary purpose. So long as the ordinance realistically serves a legitimate public purpose, and it
employs means that are reasonably necessary to achieve that purpose without unduly oppressing
the individuals regulated, the ordinance must survive a due process challenge.[114]

The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable and
oppressive in that it sets the effectivity of the ban at three months after publication of the
ordinance. They allege that three months will be inadequate time to shift from aerial to truck-
mounted boom spraying, and effectively deprives them of efficient means to combat the Black
Sigatoka disease.

The petitioners counter that the period is justified considering the urgency of protecting the
health of the residents.

We find for the respondents.

The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. To recall, even the RTC recognized the impracticality

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of attaining a full-shift to other modes of spraying within three months in view of the costly
financial and civil works required for the conversion.[115] In the assailed decision, the CA
appropriately observed:

There appears to be three (3) forms of ground spraying, as distinguished from aerial
spraying, which are: 1. "Truck-mounted boom spraying;" 2. "manual or backpack
spraying." and 3. "sprinkler spraying." Petitioners-appellants claim that it was
physically impossible for them to shift to "truck-mounted boom spraying" within
three (3) months before the aerial spraying ban is actually enforced. They cited the
testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA Chairperson, to the
effect that since banana plantations in Davao City were configured for aerial
spraying, the same lack the road network to make "truck-mounted boom spraying"
possible. According to Dr. Fabregar, it was impossible to construct such road
networks in a span of three (3) months. Engr. Magno P. Porticos, Jr., confirmed that
the shift demands the construction of three hundred sixty (360) linear kilometers of
road which cannot be completed in three (3) months.

In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to
"truck-mounted boom spraying" requires the following steps which may be
completed in three (3) years:

1. six (6) months for planning the reconfiguration of banana plantations

to ensure effective truck-mounted boom spraying for the adequate
protections of the plantations from the Black Sigatoka fungus and other
diseases, while maximizing land use;

2. two (2) months to secure government permits for infrastructure works

to be undertaken thereon;

3. clearing banana plants and dismantling or reconstructing fixed

infrastructures, such as roads, drains, cable ways, and irrigation facilities,
which phase may be completed in eighteen (18) months;

4. importation and purchase of trucks mounted with boom spraying,

nurse trucks and protective gears. The placing of orders and delivery of
these equipments, including the training [of] the personnel who would
man the same, would take six (6) months; and

5. securing the needed capitalization to finance these undertakings would

take six (6) months to a year.

Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance

Committee, testified that her committee and the Technical Committee and
Engineering Group of PBGEA conducted a feasibility study to determine the cost in
undertaking the shift to ground spraying. Their findings fixed the estimated cost for
the purpose at Php 400 Million.

xxxx

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Both appellees failed to rebut the foregoing testimonies with empirical findings to
the contrary.

xxxx

Thus, in view of the infrastructural requirements as methodically explained, We are

convinced that it was physically impossible for petitioners-appellants to carry out a
carefully planned configuration of vast hectares of banana plantations and be able to
actually adopt "truck-mounted boom spraying" within three (3) months. To compel
petitioners-appellants to abandon aerial spraying in favor of "manual or backpack
spraying" or "sprinkler spraying" within 3 months puts petitioners-appellants in a
vicious dilemma between protecting its investments and the health of its workers, on
the one hand, and the threat of prosecution if they refuse to comply with the
imposition. We even find the 3-months transition period insufficient, not only in
acquiring and gearing-up the plantation workers of safety appurtenances, but more
importantly in reviewing safety procedures for "manual or backpack spraying" and
in training such workers for the purpose. Additionally, the engineering works for a
sprinkler system in vast hectares of banana plantations could not possibly be
completed within such period, considering that safety and efficiency factors need to
be considered in its structural re-designing.

xxxx

Respondent-appellee argues that the Ordinance merely banned an agricultural

practice and did not actually prohibit the operation of banana plantations; hence, it is
not oppressive. While We agree that the measure did not impose a closure of a lawful
enterprise, the proviso in Section 5, however, compels petitioners-appellants to
abandon aerial spraying without affording them enough time to convert and adopt
other spraying practices. This would preclude petitioners-appellants from being able
to fertilize their plantations with essential vitamins and minerals substances, aside
from applying thereon the needed fungicides or pesticides to control, if not eliminate
the threat of, plant diseases. Such an apparent eventuality would prejudice the
operation of the plantations, and the economic repercussions thereof would just be
akin to shutting down the venture.

This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision
because the compulsion thereunder to abandon aerial spraying within an
impracticable period of "three (3) months after the effectivity of this Ordinance" is
"unreasonable, oppressive and impossible to comply with."[116]

The required civil works for the conversion to truck-mounted boom spraying alone will
consume considerable time and financial resources given the topography and geographical
features of the plantations.[117] As such, the conversion could not be completed within the short
timeframe of three months. Requiring the respondents and other affected individuals to comply
with the consequences of the ban within the three-month period under pain of penalty like fine,
imprisonment and even cancellation of business permits would definitely be oppressive as to
constitute abuse of police power.

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The respondents posit that the requirement of maintaining a buffer zone under Section 6 of the
ordinance violates due process for being confiscatory; and that the imposition unduly deprives
all agricultural landowners within Davao City of the beneficial use of their property that
amounts to taking without just compensation.

The position of the respondents is untenable.

In City of Manila v. Laguio, Jr.,[118] we have thoroughly explained that taking only becomes
confiscatory if it substantially divests the owner of the beneficial use of its property, viz.:

An ordinance which permanently restricts the use of property that it cannot be used
for any reasonable purpose goes beyond regulation and must be recognized as a
taking of the property without just compensation. It is intrusive and violative of the
private property rights of individuals.

The Constitution expressly provides in Article III, Section 9, that "private property
shall not be taken for public use without just compensation." The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.

There are two different types of taking that can be identified. A "possessory" taking
occurs when the government confiscates or physically occupies property. A
"regulatory" taking occurs when the government's regulation leaves no reasonable
economically viable use of the property.

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also
could be found if government regulation of the use of property went "too far." When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property
may be regulated to a certain extent, if regulation goes too far it will be recognized
as a taking.

No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
"a question of degree and therefore cannot be disposed of by general propositions."
On many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each case.
The Court asks whether justice and fairness require that the economic loss caused by
public action must be compensated by the government and thus borne by the public
as a whole, or whether the loss should remain concentrated on those few persons
subject to the public action.

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What is crucial in judicial consideration of regulatory takings is that government

regulation is a taking if it leaves no reasonable economically viable use of property
in a manner that interferes with reasonable expectations for use. A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owner's point of view, equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land make the use
prohibitable. When the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.

A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a taking
nonetheless may have occurred, depending on a complex of factors including the
regulation's economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings clause
which is to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.

A restriction on use of property may also constitute a "taking" if not reasonably

necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner. (bold
emphasis supplied)

The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires
the planting of diversified trees within the identified buffer zone, the requirement cannot be
construed and deemed as confiscatory requiring payment of just compensation. A landowner
may only be entitled to compensation if the taking amounts to a permanent denial of all
economically beneficial or productive uses of the land. The respondents cannot be said to be
permanently and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones.

III
Ordinance No. 0309-07 violates the Equal Protection Clause

A serious challenge being posed against Ordinance No. 0309-07 rests on its supposed collision
with the Equal Protection Clause. The respondents submit that the ordinance transgresses this
constitutional guaranty on two counts, to wit: (1) by prohibiting aerial spraying per se,
regardless of the substance or the level of concentration of the chemicals to be applied; and (2)
by imposing the 30-meter buffer zone in all agricultural lands in Davao City regardless of the
sizes of the landholding.

The constitutional right to equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. It requires
public bodies and institutions to treat similarly situated individuals in a similar manner. The
guaranty equal protection secures every person within the State's jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
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improper execution through the State's duly constituted authorities. The concept of equal justice
under the law demands that the State governs impartially, and not to draw distinctions between
individuals solely on differences that are irrelevant to the legitimate governmental objective.
[119]

Equal treatment neither requires universal application of laws to all persons or things without
distinction,[120] nor intends to prohibit legislation by limiting the object to which it is directed or
by the territory in which it is to operate.[121] The guaranty of equal protection envisions equality
among equals determined according to a valid classification.[122] If the groupings are
characterized by substantial distinctions that make real differences, one class may be treated and
regulated differently from another.[123] In other word, a valid classification must be: (1) based
on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing
conditions only; and (4) equally applicable to all members of the class.[124]

Based on these parameters, we find for the respondents.

The reasonability of a distinction and sufficiency of the justification given by the Government
for its conduct is gauged by using the means-end test.[125] This test requires analysis of: (1) the
interests of the public that generally require its exercise, as distinguished from those of a
particular class; and (2) the means employed that are reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive upon individuals.[126] To
determine the propriety of the classification, courts resort to three levels of scrutiny, viz: the
rational scrutiny, intermediate scrutiny and strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose.[127] The rational
basis test often applies in cases involving economics or social welfare,[128] or to any other case
not involving a suspect class.[129]

When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives
intermediate scrutiny.[130] To survive intermediate scrutiny, the law must not only further an
important governmental interest and be substantially related to that interest, but the justification
for the classification must be genuine and must not depend on broad generalizations.[131]

The strict scrutiny review applies when a legislative classification impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect
class. The Government carries the burden to prove that the classification is necessary to achieve
a compelling state interest, and that it is the least restrictive means to protect such interest.[132]

The petitioners advocate the rational basis test. In particular, the petitioning residents of Davao
City argue that the CA erroneously applied the strict scrutiny approach when it declared that the
ordinance violated the Equal Protection Clause because the ban included all substances
including water and vitamins. The respondents agree with the CA, however, and add that the
ordinance does not rest on a valid distinction because it has lacked scientific basis and has
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ignored the classifications of pesticides observed by the FPA.

We partly agree with both parties.

In our view, the petitioners correctly argue that the rational basis approach appropriately applies
herein. Under the rational basis test, we shall: (1) discern the reasonable relationship between
the means and the purpose of the ordinance; and (2) examine whether the means or the
prohibition against aerial spraying is based on a substantial or reasonable distinction. A
reasonable classification includes all persons or things similarly situated with respect to the
purpose of the law.[133]

Applying the test, the established classification under Ordinance No. 0309-07 is to be viewed in
relation to the group of individuals similarly situated with respect to the avowed purpose. This
gives rise to two classes, namely: (1) the classification under Ordinance No. 0309-07 (legislative
classification); and (2) the classification based on purpose (elimination of the mischief). The
legislative classification found in Section 4 of the ordinance refers to "all agricultural entities"
within Davao City. Meanwhile, the classification based on the purpose of the ordinance cannot
be easily discerned because the ordinance does not make any express or implied reference to it.
We have to search the voluminous records of this case to divine the animus behind the action of
the Sangguniang Panglungsod in prohibiting aerial spraying as an agricultural activity. The
effort has led us to the following proposed resolution of the Sangguniang Panglungsod,[134] viz.:

RESOLUTION NO. ____

Series of 2007

A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING

AS AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN
DAVAO CITY

WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts
various large farms planted with different crops;

WHEREAS, these farms, lay adjacent to other agricultural businesses and that
residential areas abuts these farm boundaries;

WHEREAS, aerial spraying as a mode of applying chemical substances such as

fungicides and pesticides is being used by investors/companies over large
agricultural plantations in Davao City;

WHEREAS, the Davao City watersheds and ground water sources, located within
and adjacent to Mount Apo may be affected by the aerial spraying of chemical
substances on the agricultural farms and plantations therein;

WHEREAS, the effects of aerial spraying are found to be detrimental to the health of
the residents of Davao City most especially the inhabitants nearby agricultural
plantations practicing aerials spraying;

WHEREAS, the unstable wind direction during the conduct of aerial spray
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application of these chemical substances pose health hazards to people, animals,

other crops and ground water sources;

WHEREAS, in order to achieve sustainable development, politics must be based on

the Precautionary Principle. Environment measures must anticipate, prevent, and
attack the causes of environmental degradation. Where there are threats of serious,
irreversible damage, lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation;

WHEREAS, it is the policy of the City of Davao to ensure the safety of its
inhabitants from all forms of hazards, especially if such hazards come from
development activities that are supposed to be beneficial to everybody;

WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when
dispensed aerially through aircraft because of unstable wind conditions which in turn
makes aerial spray drifting to unintended targets a commonplace.

WHEREAS, aerial spraying of pesticides is undeniably a nuisance.

WHEREAS, looking at the plight of the complainants and other stakeholders

opposed to aerial spraying, the issue of aerial spraying of pesticides is in all fours a
nuisance. Given the vastness of the reach of aerial spraying, the said form of
dispensation falls into the category of a public nuisance. Public nuisance is defined
by the New Civil Code as one which affects a community or neighborhood or any
considerable number of persons, although the extent of the annoyance, danger or
damage upon individuals may be unequal.

WHEREAS, the General Welfare Clause of the Local Government Code empowers
Local Government Units to enact ordinances that provide for the health and safety,
promote the comfort and convenience of the City and the inhabitants thereof.

NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that

for the health, safety and peace of mind of all the inhabitants of Davao City, let an
ordinance be enacted banning aerial spraying as an agricultural practice in all
agricultural entities in Davao City.

xxxx

The proposed resolution identified aerial spraying of pesticides as a nuisance because of the
unstable wind direction during the aerial application, which (1) could potentially contaminate
the Davao City watersheds and ground water sources; (2) was detrimental to the health of Davao
City residents, most especially those living in the nearby plantations; and (3) posed a hazard to
animals and other crops. Plainly, the mischief that the prohibition sought to address was the
fungicide drift resulting from the aerial application; hence, the classification based on the intent
of the proposed ordinance covered all agricultural entities conducting aerial spraying of
fungicides that caused drift.

The assailed ordinance thus becomes riddled with several distinction issues.

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A brief discussion on the occurrence of the drift that the ordinance seeks to address is necessary.

Pesticide treatment is based on the use of different methods of application and equipment,[135]
the choice of which methods depend largely on the objective of distributing the correct dose to a
defined target with the minimum of wastage due to "drift."[136] The term "drift" refers to the
movement of airborne spray droplets, vapors, or dust particles away from the target area during
pesticide application.[137] Inevitably, any method of application causes drift, which may either
be primary or secondary. As fittingly described by scholars:[138]

Primary drift is the off-site movement of spray droplets at, or very close to, the time
of application. For example, a field application using a boom in a gusty wind
situation could easily lead to a primary drift. Primary spray drift is not product
specific, and the active ingredients do not differ in their potential to drift. However,
the type of formulation, surfactant, or other adjuvant may affect spray drift potential.

Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the
movement of the gas that forms when an active ingredient evaporates from plants,
soil, or other surfaces. And while vapor drift is an important issue, it only pertains to
certain volatile products. Vapor drift and other forms of secondary drift are product
specific. Water-based sprays will volatize more quickly than oil-based sprays.
However, oil-based sprays can drift farther, especially above 95°F, because they are
lighter.

Understandably, aerial drift occurs using any method of application, be it through airplanes,
ground sprayers, airblast sprayers or irrigation systems.[139] Several factors contribute to the
occurrence of drift depending on the method of application, viz.:

AERIAL AIRBLAST GROUND CHEMIGATION

Droplet size Crop canopy Droplet size Application height
Application height Droplet size Boom height Wind speed
Wind speed Wind speed Wind speed
Swath adjustment
Canopy
Boom length
Tank mix physical
properties

Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available at
http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.

The four most common pesticide treatment methods adopted in Davao City are aerial, truck-
mounted boom, truck-mounted mechanical, and manual spraying.[140] However, Ordinance No.
0309-07 imposes the prohibition only against aerial spraying.

Davao City justifies the prohibition against aerial spraying by insisting that the occurrence of
drift causes inconvenience and harm to the residents and degrades the environment. Given this

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justification, does the ordinance satisfy the requirement that the classification must rest on
substantial distinction?

We answer in the negative.

The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying
produces drift that may bring about the same inconvenience, discomfort and alleged health risks
to the community and to the environment.[141] A ban against aerial spraying does not weed out
the harm that the ordinance seeks to achieve.[142] In the process, the ordinance suffers from
being "underinclusive" because the classification does not include all individuals tainted with
the same mischief that the law seeks to eliminate.[143] A classification that is drastically
underinclusive with respect to the purpose or end appears as an irrational means to the
legislative end because it poorly serves the intended purpose of the law.[144]

The claim that aerial spraying produces more aerial drift cannot likewise be sustained in view of
the petitioners' failure to substantiate the same. The respondents have refuted this claim, and
have maintained that on the contrary, manual spraying produces more drift than aerial
treatment[145] As such, the decision of prohibiting only aerial spraying is tainted with
arbitrariness.

Aside from its being underinclusive, the assailed ordinance also tends to be "overinclusive"
because its .impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on the
purpose of the law.[146]

It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity to
be conducted. The respondents admit that they aerially treat their plantations not only with
pesticides but also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the ordinance, seeks to
address. The burden now will become more onerous to various entities including the
respondents and even others with no connection whatsoever to the intended purpose of the
ordinance.

In this respect, the CA correctly observed:

Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances

through the use of aircraft of any form which dispenses the substances in the air."
Inevitably, the ban imposed therein encompasses aerial application of practically all
substances, not only pesticides or fungicides but including water and all forms of
chemicals, regardless of its elements, composition, or degree of safety.

Going along with respondent-appellee's ratiocination that the prohibition in the

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Ordinance refers to aerial spraying as a method of spraying pesticides or fungicides,

there appears to be a need to single out pesticides or fungicides in imposing such a
ban because there is a striking distinction between such chemicals and other
substances (including water), particularly with respect to its safety implications to
the public welfare and ecology.

xxxx

We are, therefore, convinced that the total ban on aerial spraying runs afoul with the
equal protection clause because it does not classify which substances are prohibited
from being applied aerially even as reasonable distinctions should be made in terms
of the hazards, safety or beneficial effects of liquid substances to the public health,
livelihood and the environment.[147]

We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated the
classification established by the ordinance in relation to the purpose. This is the essence of the
rational basis approach.

The petitioners should be made aware that the rational basis scrutiny is not based on a simple
means-purpose correlation; nor does the rational basis scrutiny automatically result in a
presumption of validity of the ordinance or deference to the wisdom of the local legislature.[148]
To reiterate, aside from ascertaining that the means and purpose of the ordinance are reasonably
related, the classification should be based on a substantial distinction.

However, we do not subscribe to the respondents' position that there must be a distinction based
on the level of concentration or the classification imposed by the FPA on pesticides. This
strenuous requirement cannot be expected from a local government unit that should only be
concerned with general policies in local administration and should not be restricted by technical
concerns that are best left to agencies vested with the appropriate special competencies. The
disregard of the pesticide classification is not an equal protection issue but is more relevant in
another aspect of delegated police power that we consider to be more appropriate in a later
discussion.

The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of
its requirement for the maintenance of the 30- meter buffer zone. This requirement applies
regardless of the area of the agricultural landholding, geographical location, topography, crops
grown and other distinguishing characteristics that ideally should bear a reasonable relation to
the evil sought to be avoided. As earlier discussed, only large banana plantations could rely on
aerial technology because of the financial capital required therefor.

The establishment and maintenance of the buffer zone will become more burdensome to the
small agricultural landholders because: (1) they have to reserve the 30-meter belt surrounding
their property; (2) that will have to be identified through GPS; (3) the metes and bounds of the
buffer zone will have to be plotted in a survey plan for submission to the local government unit;
and (4) will be limited as to the crops that may be cultivated therein based on the mandate that
the zone shall be devoted to "diversified trees" taller than what are being grown therein.[149]
The arbitrariness of Section 6 all the more becomes evident when the land is presently devoted
to the cultivation of root crops and vegetables, and trees or plants slightly taller than the root
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crops and vegetables are then to be planted. It is seriously to be doubted whether such
circumstance will prevent the occurrence of the drift to the nearby residential areas.

Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in
organic farming, and' do not contribute to the occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.

A substantially overinclusive or underinclusive classification tends to undercut the

governmental claim that the classification serves legitimate political ends.[150] Where
overinclusiveness is the problem, the vice is that the law has a greater discriminatory or
burdensome effect than necessary.[151] In this light, we strike down Section 5 and Section 6 of
Ordinance No. 0309-07 for carrying an invidious classification, and for thereby violating the
Equal Protection Clause.

The discriminatory nature of the ordinance can be seen from its policy as stated in its Section 2,
to wit:

Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to
eliminate the method of aerial spraying as an agricultural practice in all agricultural
activities by all entities within Davao City.

Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively denies
the affected individuals the technology aimed at efficient and cost-effective operations and
cultivation not only of banana but of other crops as well. The prohibition against aerial spraying
will seriously hamper the operations of the banana plantations that depend on aerial technology
to arrest the spread of the Black Sigatoka disease and other menaces that threaten their
production and harvest. As earlier shown, the effect of the ban will not be limited to Davao City
in view of the significant contribution of banana export trading to the country's economy.

The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not
overburden the respondents and those dependent on their operations as well as those who stand
to be affected by the ordinance. In the view of Regional Director Roger C. Chio of DA Regional
Field Unit XI, the alleged harm caused by aerial spraying may be addressed by following the
GAP that the DA has been promoting among plantation operators. He explained his view thusly:

The allegation that aerial spraying is hazardous to animal and human being remains
an allegation and assumptions until otherwise scientifically proven by concerned
authorities and agencies. This issue can be addressed by following Good Agricultural
Practices, which DA is promoting among fruit and vegetable growers/plantations.
Any method of agri-chemical application whether aerial or non-aerial if not properly
done in accordance with established procedures and code of good agricultural
practices and if the chemical applicators and or handlers lack of necessary
competency, certainly it could be hazardous. For the assurance that commercial
applicators/aerial applicators possessed the competency and responsibility of
handling agri-chemical, such applicators are required under Article III, Paragraph 2
of FPA Rules and Regulation No. 1 to secure license from FPA.
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Furthermore users and applicators of agri-chemicals are also guided by Section 6

Paragraph 2 and 3 under column of Pesticides and Other agricultural Chemicals of
PD 11445 which stated: "FPA shall establish and enforce tolerance levels and good
agricultural practices in raw agricultural commodities; to restrict or ban the use of
any chemical or the formulation of certain pesticides in specific areas or during
certain period upon evidence that the pesticide is eminent [sic] hazards has caused,
or is causing widespread serious damage to crops, fish, livestock or to public health
and environment."

Besides the aforecited policy, rules and regulation enforced by DA, there are other
laws and regulations protecting and preserving the environment. If the
implementation and monitoring of all these laws and regulation are closely
coordinated with concerned LGUs, Gas and NGAs and other private sectors, perhaps
we can maintain a sound and health environment x x x.[152]

Indeed, based on the Summary Report on the Assessment and Factfinding Activities on the Issue
of Aerial Spraying in Banana Plantations,[153] submitted by the fact-finding team organized by
Davao City, only three out of the 13 barangays consulted by the fact-finding team opposed the
conduct of aerial spraying; and of the three barangays, aerial spraying was conducted only in
Barangay Subasta. In fact, the fact-finding team found that the residents in those barangays were
generally in favor of the operations of the banana plantations, and did not oppose the conduct of
aerial spraying.

IV
The Precautionary Principle still requires scientific basis

The petitioners finally plead that the Court should look at the merits of the ordinance based on
the precautionary principle. They argue that under the precautionary principle, the City of
Davao is justified in enacting Ordinance No. 0309-07 in order to prevent harm to the
environment and human health despite the lack of scientific certainty.

The petitioners' plea and argument cannot be sustained.

The principle of precaution originated as a social planning principle in Germany. In the 1980s,
the Federal Republic of Germany used the Vorsogeprinzip ("foresight principle") to justify the
implementation of vigorous policies to tackle acid rain, global warming and pollution of the
North Sea.[154] It has since emerged from a need to protect humans and the environment from
increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as
those associated with Genetically Modified Organisms and climate change,[155] among others.
The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992
Rio Agenda), first embodied this principle, as follows:

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

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irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.

In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for
Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there
is lack of full scientific certainty in establishing a causal link between human activity and
environmental effect.[156] In such an event, the courts may construe a set of facts as warranting
either judicial action or inaction with the goal of preserving and protecting the environment.[157]

It is notable, therefore, that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental damage and serious
or irreversible harm. In situations where the threat is relatively certain, or that the causal link
between an action and environmental damage can be established, or the probability of
occurrence can be calculated, only preventive, not precautionary measures, may be taken.
Neither will the precautionary principle apply if there is no indication of a threat of
environmental harm; or if the threatened harm is trivial or easily reversible.[158]

We cannot see the presence of all the elements. To begin with, there has been no scientific study.
Although the precautionary principle allows lack of full scientific certainty in establishing a
connection between the serious or irreversible harm and the human activity, its application is
still premised on empirical studies. Scientific analysis is still a necessary basis for effective
policy choices under the precautionary principle.[159]

Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonympus with risk assessment.[160] As such, resort to the
principle shall not be based on anxiety or emotion, but from a rational decision rule, based in
ethics.[161] As much as possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-makers for them to
choose the most appropriate course of action.[162] Furthermore, the positive and negative effects
of an activity is also important in the application of the principle. The potential harm resulting
from certain activities should always be judged in view of the potential benefits they offer, while
the positive and negative effects of potential precautionary measures should be considered.[163]

The only study conducted to validate the effects of aerial spraying appears to be the Summary
Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana
Plantations.[164] Yet, the fact-finding team that generated the report was not a scientific study
that could justify the resort to the precautionary principle. In fact, the Sangguniang Bayan
ignored the findings and conclusions of the fact-finding team that recommended only a
regulation, not a ban, against aerial spraying. The recommendation was in line with the
advocacy of judicious handling and application of chemical pesticides by the DOH-Center for
Health Development in the Davao Region in view of the scarcity of scientific studies to support
the ban against aerial spraying.[165]

We should not apply the precautionary approach in sustaining the ban against aerial spraying if
little or nothing is known of the exact or potential dangers that aerial spraying may bring to the
health of the residents within and near the plantations and to the integrity and balance of the
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environment. It is dangerous to quickly presume that the effects of aerial spraying would be
adverse even in the absence of evidence. Accordingly, for lack of scientific data supporting a
ban on aerial spraying, Ordinance No. 0309-07 should be struck down for being unreasonable.

V
Ordinance No. 0309-07 is an ultra vires act

The Court further holds that in addition to its unconstitutionality for carrying an unwarranted
classification that contravenes the Equal Protection Clause, Ordinance No. 0309-07 suffers from
another legal infirmity.

The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and police
powers by the Sangguniang Bayan of Davao City pursuant to Section 458 in relation to Section
16 both of the Local Government Code. The respondents counter that Davao City thereby
disregarded the regulations implemented by the Fertilizer and Pesticide Authority (FPA),
including its identification and classification of safe pesticides and other agricultural chemicals.

We uphold the respondents.

An ordinance enjoys the presumption of validity on the basis that:

The action of the elected representatives of the people cannot be lightly set aside.
The councilors must, in the very nature of things, be familiar with the necessities of
their particular municipality and with all the facts and circumstances which surround
the subject, and necessities of their particular municipality and with all the facts and
circumstances which surround the subject, and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well-being of the people.[166]

Section 5(c) of the Local Government Code accords a liberal interpretation to its general welfare
provisions. The policy of liberal construction is consistent with the spirit of local autonomy that
endows local government units with sufficient power and discretion to accelerate their economic
development and uplift the quality of life for their constituents.

Verily, the Court has championed the cause of public welfare on several occasions. In so doing,
it has accorded liberality to the general welfare provisions of the Local Government Code by
upholding the validity of local ordinances enacted for the common good. For instance, in Social
Justice Society (SJS) v. Atienza, Jr.,[167] the Court validated a zoning ordinance that reclassified
areas covered by a large oil depot from industrial to commercial in order to ensure the life,
health and property of the inhabitants residing within the periphery of the oil depot. Another
instance is Gancayco v. City Government of Quezon City,[168] where the Court declared as valid
a city ordinance ordering the construction of arcades that would ensure the health and safety of
the city and its inhabitants, improvement of their morals, peace, good order, comfort and
convenience, as well as the promotion of their prosperity. Even in its early years, the Court
already extended liberality towards the exercise by the local government units; of their
legislative powers in order to promote the general welfare of their communities. This was
exemplified in United States v. Salaveria,[169] wherein gambling was characterized as "an act
beyond the pale of good morals" that the local legislative council could validly suppress to
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protect the well-being of its constituents; and in United States v. Abendan,[170] whereby the
right of the then Municipality of Cebu to enact an ordinance relating to sanitation and public
health was upheld.

The power to legislate under the General Welfare Clause is not meant to be an invincible
authority. In fact, Salaveria and Abendan emphasized the reasonableness and consistency of the
exercise by the local government units with the laws or policies of the State.[171] More
importantly, because the police power of the local government units flows from the express
delegation of the power by Congress, its exercise is to be construed in strictissimi juris. Any
doubt or ambiguity arising out of the terms used in granting the power should be construed
against the local legislative units.[172] Judicial scrutiny comes into play whenever the exercise
of police power affects life, liberty or property.[173] The presumption of validity and the policy
of liberality are not restraints on the power of judicial review in the face of questions about
whether an ordinance conforms with the Constitution, the laws or public policy, or if it is
unreasonable, oppressive, partial, discriminating or in derogation of a common right. The
ordinance must pass the test of constitutionality and the test of consistency with the prevailing
laws.[174]

Although the Local Government Code vests the municipal corporations with sufficient power to
govern themselves and manage their affairs and activities, they definitely have no right to enact
ordinances dissonant with the State's laws and policy. The Local Government Code has been
fashioned to delineate the specific parameters and limitations to guide each local government
unit in exercising its delegated powers with the view of making the local government unit a
fully functioning subdivision of the State within the constitutional and statutory restraints.[175]
The Local Government Code is not intended to vest in the local government unit the blanket
authority to legislate upon any subject that it finds proper to legislate upon in the guise of
serving the common good.

The function of pesticides control, regulation and development is within the jurisdiction of the
FPA under Presidential Decree No. 1144.[176] The FPA was established in recognition of the
need for a technically oriented government entity[177] that will protect the public from the risks
inherent in the use of pesticides.[178] To perform its mandate, it was given under Section 6 of
Presidential Decree No. 1144 the following powers and functions with respect to pesticides and
other agricultural chemicals, viz.:

Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing
handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA
shall have the following powers and functions:

xxxx

III. Pesticides and Other Agricultural Chemicals

1. To determine specific uses or manners of use for each pesticide or pesticide

formulation;

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2. To establish and enforce levels and good agricultural practices for use of
pesticides in raw agricultural commodities;

3. To restrict or ban the use of any pesticide or the formulation of certain pesticides
in specific areas or during certain periods upon evidence that the pesticide is an
imminent hazard, has caused, or is causing widespread serious damage to crops, fish
or livestock, or to public health and environment;

xxxx

5. To inspect the establishment and premises of pesticide handlers to insure that

industrial health and safety rules and anti-pollution regulations are followed;

6. To enter and inspect farmers' fields to ensure that only the recommended
pesticides are used in specific crops in accordance with good agricultural practice;

x x x x (Emphasis supplied).

Evidently, the FPA was responsible for ensuring the compatibility between the usage and the
application of pesticides in agricultural activities and the demands for human health and
environmental safety. This responsibility includes not only the identification of safe and unsafe
pesticides, but also the prescription of the safe modes of application in keeping with the
standard of good agricultural practices.

On the other hand, the enumerated devolved functions to the local government units do not
include the regulation and control of pesticides and other agricultural chemicals.[179] The non-
inclusion should preclude the Sangguniang Bayan of Davao City from enacting Ordinance No.
0309-07, for otherwise it would be arrogating unto itself the authority to prohibit the aerial
application of pesticides in derogation of the authority expressly vested in the FPA by
Presidential Decree No. 1144.

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City
of Davao performed an ultra vires act. As a local government unit, the City of Davao could act
only as an agent of Congress, and its every act should always conform to and reflect the will of
its principal.[180] As clarified in Batangas CATV, Inc. v. Court of Appeals:[181]

[W]here the state legislature has made provision for the regulation of conduct, it has
manifested its intention that the subject matter shall be fully covered by the statute,
and that a municipality, under its general powers, cannot regulate the same conduct.
In Keller vs. State, it was held that: "Where there is no express power in the charter
of a municipality authorizing it to adopt ordinances regulating certain matters which
are specifically covered by a general statute, a municipal ordinance, insofar as it
attempts to regulate the subject which is completely covered by a general statute of
the legislature, may be rendered invalid. x x x Where the subject is of statewide
concern, and the legislature has appropriated the field and declared the rule, its
declaration is binding throughout the State." A reason advanced for this view is that
such ordinances are in excess of the powers granted to the municipal corporation.

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Since E.O. No. 205, a general law, mandates that the regulation of CATV operations
shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a
resolution in violation of the said law.

It is a fundamental principle that municipal ordinances are inferior in status and

subordinate to the laws of the state. An ordinance in conflict with a state law of
general character and statewide application is universally held to be invalid. The
principle is frequently expressed in the declaration that municipal authorities, under
a general grant of power, cannot adopt ordinances which infringe the spirit of a state
law or repugnant to the general policy of the state. In every power to pass ordinances
given to a municipality, there is an implied restriction that the ordinances shall be
consistent with the general law.[182] (Emphasis ours)

For sure, every local government unit only derives its legislative authority from Congress. In no
instance can the local government unit rise above its source of authority. As such, its ordinance
cannot run against or contravene existing laws, precisely because its authority is only by virtue
of the valid delegation from Congress. As emphasized in City of Manila v. Laguio, Jr.:[183]

The requirement that the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by virtue of their
derivative legislative power, a delegation of legislative power from the national
legislature. The delegate cannot be superior to the principal or exercise powers
higher than those of the latter.

This relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. The national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.[184]

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the
jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular
No. 02, Series of 2009, entitled Good Agricultural Practices for Aerial Spraying of Fungicide in
Banana Plantations.[185] While Ordinance No. 0309-07 prohibits aerial spraying in banana
plantations within the City of Davao, Memorandum Circular No. 02 seeks to regulate the
conduct of aerial spraying in banana plantations[186] pursuant to Section 6, Presidential Decree
No. 1144, and in conformity with the standard of Good Agricultural Practices (GAP).
Memorandum Circular No. 02 covers safety procedures,[187] handling[188] and post-application,
[189] including the qualifications of applicators,[190] storing of fungicides,[191] safety and

equipment of plantation personnel,[192] all of which are incompatible with the prohibition
against aerial spraying under Ordinance No. 0309-07.

Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require the
maintenance of the buffer zone, they differ as to their treatment and maintenance of the buffer
zone. Under Memorandum Circular No. 02, a 50-meter "no-spray boundary" buffer zone should
be observed by the spray pilots,[193] and the observance of the zone should be recorded in the
Aerial Spray Final Report (ASFR) as a post-application safety measure.[194] On the other hand,
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Ordinance No. 0309-07 requires the maintenance of the 30-meter buffer zone to be planted with
diversified trees.[195]

Devoid of the specific delegation to its local legislative body, the City of Davao exceeded its
delegated authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be
struck down also for being an ultra vires act on the part of the Sangguniang Bayan of Davao
City.

We must emphasize that our ruling herein does not seek to deprive the LGUs their right to
regulate activities within their jurisdiction. They are empowered under Section 16 of the Local
Government Code to promote the general welfare of the people through regulatory, not
prohibitive, ordinances that conform with the policy directions of the National Government.
Ordinance No. 0309-07 failed to pass this test as it contravenes the specific regulatory policy on
aerial spraying in banana plantations on a nationwide scale of the National Government, through
the FPA.

Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07 in its
entirety. Consequently, any discussion on the lack of the separability clause becomes entirely
irrelevant.

WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their
lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV No.
01389-MIN. declaring Ordinance No. 0309-07 UNCONSTITUTIONAL; PERMANENTLY
ENJOINS respondent City of Davao, and all persons or entities acting in its behalf or under its
authority, from enforcing and implementing Ordinance No. 0309-07; and ORDERS the
petitioners to pay the costs of suit.

SO ORDERED.

Sereno, C. J., Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Perez, Mendoza, Reyes,
Perlas-Bernabe, Jardeleza, and Caguioa, JJ., concur.
Carpio, J., No part. Former law partners are counsels.
Brion, J., On leave.
Leonen, J., See separate concurring opinion.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on August 16, 2016 a Decision/Resolution, copy attached herewith, was
rendered by the Supreme Court in the above-entitled cases the original of which was received by
this Office on September 9, 2016 at 10:15.

Very truly yours,

(SGD)

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WILFREDO V.
LAPITAN
Division Clerk of Court

[1]Rollo (G.R. No. 189185; Vol. I), pp. 72-115; penned by Associate Justice Jane Aurora C.
Lantion, with the concurrence of Associate Justice Rodrigo F. Lim, Jr. (retired), Associate
Justice Normandie B. Pizarro, and Associate Justice Michael P. Elbinias (deceased); while
Associate Justice Romulo V. Borja dissented.

[2] Records no. 1, pp. 67-69.

[3] Id. at 69.

[4] Rollo (G.R. No. 189185; Vol. I), p. 74.

[5]Records no. 1, pp, 2-60; Entitled "Pilipino Banana Growers and Export Association, Inc.,
Davao Fruits Corporation and Lapanday Agricultural and Development Corporation,
petitioners, versus City of Davao, respondent," docketed as Civil Case No. 31, 837-07.

[6]Section 511. Posting and Publication of Ordinances with Penal Sanctions. — (a) Ordinances
with penal sanctions shall be posted at prominent places in the provincial capitol, city, municipal
or barangay hall, as the case may be, for a minimum period of three (3) consecutive weeks.
Such ordinances shall also be published in a newspaper of general circulation, where available,
within the territorial jurisdiction of the local government unit concerned, except in the case of
barangay ordinances. Unless otherwise provided therein, said ordinances shall take effect on the
day following its publication, or at the end of the period, of posting, whichever occurs later.

(b) x x x

(c) The secretary to the sanggunian concerned shall transmit official copies of such ordinances
to the chief executive officer of the Official Gazette within seven (7) days following the
approval of the said ordinance for publication purposes. The Official Gazette may publish
ordinances with penal sanctions for archival and reference purposes.

[7] Namely: Wilfredo Mosqueda, Marcelo Villaganes, Crispin Alcomendras, Corazon Sabinada,
Rebecca Saligumba, Carolina Pilongo, Alejandra Bentoy, Ledevina Adlawan, and Virginia Cata-
ag.

[8] Namely: Geraldine Catalan, Julieta Lawagon and Florencia Sabandon.

[9] Records no. 1, pp. 228-245.

[10] Records no. 4, pp. 1115-1120.

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[11]Records no. 5, pp. 1422-1430, (The RTC issued the writ of preliminary injunction on June
25, 2007 after the PBGEA posted a P1,000,000.00 bond).

[12] Records no. 10, p. 2928.

[13] Id. at 2914-2918.

[14] Id. at 2912.

[15] Id. at 2919-2920.

[16] Id. at 2921.

[17] Id. at 2926-2927.

[18] Id. at 2947-2948.

[19] CA rollo (Vol. I), pp. 10-92.

[20] Id. at 297-299.

[21] Id. at 573-574.

[22] Supra note 1.

[23] Rollo (G.R. No. 189185; Vol. I), pp. 209-227.

[24] Rollo (G.R. No. 189195; Vol. I), pp. 39-42.

[25] Id. at 49-50.

[26] Id. at 54-55.

[27] Id. at 56-57.

[28] Id. at pp. 51-54.

[29] Id. at 56.

[30] 56 Phil. 204 (1931).

[31] G.R. No. 104786, January 27, 1994, 229 SCRA 554, 559.

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[32] G.R. No. 156052, February 13, 2008, 545 SCRA 92, 142.

[33] The ISO 14000 family of international standards provides practical management tools for
companies and organizations in the management of environmental aspects and assessment of
their environmental performance. (See International Organization for Standardization,
"Environmental Management: The ISO 14000 family of International Standards," (wnd ed.,
2010) available at www.iso.org/iso/home/store/publication_item.htm?pid=PUB100238 last
opened on July 14, 2016 at 9:00 a.m.)

[34] Rollo (G.R. No. 189185; Vol. I), p. 62.

[35] Rollo (G.R. No. 189305; Vol. I), pp. 82-83.

[36] Id. at 88-89.

[37] Id. at 89-90.

[38] Id. at 68-89.

[39] Id. at 45-49.

[40] Supra.

[41] Rollo (G.R. No. 189305; Vol. I), pp. 61-64.

[42] Id. at 66.

[43] Id. at 71-73.

[44] Id. at 77.

[45] Id. at 107-108.

[46] Section 6, Article XII, 1987 Constitution.

[47] Rollo (G.R. No. 189185; Vol. I), p. 375.

[48] Rollo (G.R. No. 189185; Vol. II), pp. 1244-1251.

[49] G.R. No. 118127, April 12, 2005, 455 SCRA 308, 342.

[50] Rollo (G.R. No. 189185; Vol. II), pp. 1265-1266.

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[51] A period of four (4) to twelve (12) days.

[52] Rollo (G.R. No. 189185; Vol. II), pp. 1266-1267.

[53] Id. at 1331.

[54] Id. at 1256.

[55]Id. at 1257-1258; according to the respondents' witness, Mr. Richard Billington, the drift at
the edge of an area sprayed from the air results to approximately half of the corresponding value
for ground application. This observation was based on the AgDrift Model, developed under a
Cooperative Research and Development Agreement (CRADA) between the Spray Drift Task
Force (SDTF) of the US Environmental Protection Agency (EPA) and the US Department of
Agriculture - Agricultural Research Service (USDA-ARS).

[56] Id. at 1255.

[57]

Acute Toxicity to Rat

Category and Color Band
Oral LD50 Dermal LD50
Signal Words Symbol
(mg/kg BW) (mg/kg BW)
Solid Liquid Solid Liquid
CATEGORY I
RED 50 or less 200 or less 100 or less 400 or less
DANGER:POISON
CATEGORY II
101 to 401 to
WARNING: YELLOW 51 to 500 201 to 200
1000 4000
HARMFUL
CATEGORY III 501 to 2001 to
BLUE Over 1000 Over 4000
CAUTION 20000 3000
CATEGORY IV GREEN Over 2000 Over 3000 N/A N/A

FPA Classification Table of pesticides adopted from the World Health Organization (WHO)
Classification by Hazards (RTC Records, No. 1, p. 41).

[58] Accordingto the respondents' witness, Anacleto M. Pedrosa, Jr., Ph.D, acute toxicity to rats
of Category IV fungicides require oral ingestion of over 2000 milligrams in solid form per
kilogram of body Weight and over 3000 milligrams of such fungicide in liquid form per
kilogram of body weight to have any Adverse effect (See RTC Records, No. 4, pp. 1095-1096.)

[59]Rollo (G.R. No. 189185; Vol. III), pp. 1545-1554; Entitled "Summary Report on the
Assessment and Facrfinding Activities on the Issue of Aerial Spraying in Banana Plantations".

[60] Rollo (G.R No. 189185; Vol. II), pp. 1271-1273.

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[61] Id. at 1278-1284.

[62] Id. at 1285-1286.

[63] Id. at 1291.

[64] Id. at 1293-1296.

[65] "Good agricultural practice" is broadly defined as applying knowledge to addressing

environmental, economic and social sustainability for on-farm production and post-production
processes resulting in safe and healthy food and non-food agricultural products. The use of
pesticides includes the officially recommended or nationally authorized uses of pesticides under
actual conditions necessary for effective and reliable pest control. It encompasses a range of
levels of pesticide applications up to the highest authorized use, applied in a manner that leaves
a residue which is the smallest amount practicable. See FAO-Committee on Agriculture,
"Development of a Framework for Good Agricultural Practices" (Rome. March 31-April 4,
2003), http://www.fao.org/docrep/meeting/006/y8704e.htm last accessed July 14, 2016 at 9:40
a.m.

[66]The Guide offers practical help and guidance to individuals and entities involved in rising
pesticides for food and fibre production as well as hi Public Health programmes. They cover the
main terrestrial and aerial spray application techniques. The guide also identifies some of the
problems and suggest means of addressing them. See FAO-Committee on Agriculture and
Consumer Protection, "Guidelines on Good Practice for Aerial Application of Pesticides (Rome,
2001), http://www.fao.org/docrep/006/y2766e/y2766e00.htm last accessed July 14, 2016 at 9:42
a.m.

[67] Rollo (G.R. No. 189185; Vol. II), pp. 1300-1301; this includes: (a) notice to the community
through the advisory board at least three (3) days before the scheduled date of spraying; (b)
determining the flight pattern for the aircraft applicator using the Differential Global Positioning
system (DGPS) to establish precise swath patterns and determine specific points during the
flight for the spray valve to be turned on and shut off; (c) pre-inflight inspection of the aircraft,
including the cleaning and checking of the spray valves in the Micronair Rotary Drift Control
Atomizers (AU 5000 Low-Drift model) that disperses the solution being sprayed for a consistent
droplet-size of 200 to 250 microns to control drift; (d) monitoring by the Spray Supervisor of
the weather and environmental conditions in the weather station; and (e) sounding of alarms for
fifteen (15) minutes prior to take-off.

[68] Id. at 1301; the following are observed: (a) monitoring of wind speed and direction, and
weather conditions, and maintaining radio contact with the pilot during aerial spraying
operations; (b) diverting road traffic to prevent people from traversing hi areas near the
plantations; (c) maintaining a flying height clearance of about 3.5 meters above the leaf canopy;
(d) ensuring that spraying valves are shut-off at least 50 meters before the edge of the perimeter
and before the 30 meter buffer zone.

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[69]
Id. at 1302; includes: (a) DGPS data card recording the swath pattern submitted to the Spray
Supervisor; and (b) cleaning of aircraft including the Micronair Rotary Drift Control Atomizers
which is being calibrated monthly.

[70]Id. at 1302-1303; respondents allegedly invested in sensors, wind meters, wind cones, field
thermometers and a central weather station.

[71] Id. at 1330; A precision satellite-based navigational system that accurately plots the
plantation and guides the pilot in conducting aerial spraying.

[72] Id.; An instrument that depicts an accurate map of the plantation, indicating the turn-on and
shut-off spray valve points during the flight, and records swath patterns while the aerial spraying
is being conducted.

[73] Id.; Allows the pilot to program the grid coordinates of a particular plantation on the DGPS,
retrieve navigational guidance for the pilot, monitor ground speed (tailwind and headwind),
program and retrieve date to record the actual spraying operation.

[74] Id.; Ensures that the droplets of solution released for aerials praying are consistently
delivered with each droplet with a size of 250 microns to control drift. It controls the flow and
the drift of the solution released for aerial spraying even when the aircraft applicator is operating
at 145-240 kilometers per hour.

[75]Id.; Controls the rate of application of the solution for aerial application to ensure that the
substance being aerially sprayed is consistently and equally applied throughout the entire
banana plantation.

[76]Id.; A device that will automatically turn on and shut off the spray valves on precise points
within the target area as programmed in the GPS.

[77] Rollo (G.R. No. 189185; Vol. II), p. 1331.

[78] Id. at 1307-1311.

[79] Id. at 1322.

[80] Id. at 1316-1317.

[81] Id at 1297-1298.

[82] Id. at 1340-1342.

[83] Id at 1318-1319.

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[84] Id. at 1264.

[85] Philippine Center for Postharvest Development and Mechanization (PhilMech), "Banana
Post-harvest Situationer," http://www.philmech.gov.ph/phindustry/banana.htm., last accessed
July 14, 2016 at 9:44 a.m.

[86] DA High Value Crops Development Program, http://hvcc.da.gov.ph/banana.htm, last

accessed July 14, 2016 at 9:46 a.m.

[87] Philippine Statistics Authority, "Philippine Agriculture in Figures, 2013,"

http://countrystat.psa.gov.ph/?cont=3, last accessed July 14, 2016 at 9:50 a.m.

[88] Includes Davao del Norte, Davao City, Compostela Valley, Davao Oriental and Davao del
Sur, Panabo City, Tagum, Digos, Island Garden City of Samal.

[89]Philippine Statistics Authority, "Regional Profile: Davao," http://countrystat.psa.gov.ph/?

cont=16&r=ll, last accessed July 14, 2016 at 9:55 a.m.

[90] Farms infested by Panama disease are abandoned and left idle for about five years before
recultivation. In Davao City, only 1,800 hectares of the original 5,200 hectares planted to
bananas have remained due to the infection.
(http://www.ugnayan.com/ph/DavaodelSur/Davao/article/YCL, last accessed April 4, 2015 at
1:57 p.m.) Only two (2) varieties of Cavendish banana are recommended for planting in
Effected soil. Otherwise, new crops such as com, cacao and oil palm are recommended for
cultivation. See Manuel Cayon, "DA allots P102 million for Panama-disease control among
banana growers: Business Mirror (28 April 2015), www.businessmirror.com.ph/2015/04/28/da-
allots-p102million-for-panama-disease-control-among-banana-growers).

[91] Ploetz, Randy, "Black Sigatoka of Banana: The Most Important Disease of a Most
Important Fruit," APS, 2001,
http://www.apsnet.org/publications/apsnetfeatures/Pages/blacksigatoka.aspx, last accessed July
14, 2016 at 10:08 a.m.

[92] https://www.wageningenur.nl/en/show/Another-malor-step-in-better-disease-manasement-
in-the-global-banana-sector.htm, last accessed July 14, 2016 at 10:11 a.m.

[93]Banana: Diseases, http://nhb.gov.in/fruits/banana/ban002.pdf, last accessed July 14, 2016 at

10:15 a.m.

[94] Ploetz, Randy, Black Sigatoka in Pesticide Outlook, Vol. 11, Issue 2000,
www.researchinformation.co.uk/pest/2000/B006308H/pdf, last accessed July 14, 2016 at 10:21
a.m.

[95]Ploetz, Randy, "Black Sigatoka of Banana: The Most Important Disease of a Most
Important Fruit," APS, 2001,
https://elibrary.judiciary.gov.ph/assets/dtSearch/dtSearch_system_files/dtisapi6.dll?cmd=getdoc&DocId=62014&Index=%2a4aeb4dbdcceeda9b59b8… 40/52
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http://www.apsnet.org/publications/apsnetfeatures/Pages/blacksigatoka.aspx, last accessed July

14, 2016 at 10:13 a.m.

[96] Rollo (G.R. No. 189185; Vol. III), p. 1548; Summary Report on the Assessment and
Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.

[97]Id. at 1547; Summary Report on the Assessment and Factfinding Activities on the Issue of
Aerial Spraying in Banana Plantations.

[98]Id. at 1549; Summary-Report on the Assessment and Factfinding Activities on the Issue of
Aerial Spraying in Banana Plantations.

[99] Id. at 1568-1569.

[100] Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013, 711 SCRA 771, 785.

[101]Section 53. Quorum. - (a) A majority of all the members of the sanggunian who have been
elected and qualified shall constitute a quorum to transact official business. x x x

[102] Section 54. Approval of Ordinances. - (a) Every ordinance enacted by the x x x
sangguniang panlungsod x x x shall be presented to the x x x city or municipal mayor, as the
case may be. If the local chief executive concerned approves the same, he shall affix his
signature on each and every page thereof; x x x.

[103]Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156502, 13 February 2008, 545 SCRA
92, 139-140.

[104]
Rural Bank of Makati, Inc. v. Municipality of Makati, G.R. No. 150763, July 2, 2004, 433
SCRA 362, 371.

[105] Sec. 458, Article III, Title III, Book III, R.A. No. 7160.

[106]
Rural Bank of Makati, Inc. v. Municipality of Makati, G.R. No. 150763, July 2, 2004, 433
SCRA 362, 371-372; United States v. Salaveria, 39 Phil. 102, 110 (1918).

[107] G.R. No. 101083, July 30, 1993, 224 SCRA 792, 805.

[108]Fernando v. St. Scholastica's College, G.R. No. 161107, March 12, 2013, 693 SCRA 141,
157, citing White Light Corporation v. City of Manila, No. G.R. No. 122846, January 20, 2009,
576 SCRA 416, 433.

[109] Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013, 711 SCRA 771, 784-785;
citing City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 326.

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[110] Supra note 103, at 139.

[111] Id. at 138.

[112] Parayno v. Jovellanos, G.R. No. 148408, July 14, 2006, 495 SCRA 85, 93.

[113] City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 330.

[114] State v. Old South Amusements, Inc., 564 S.E.2d 710 (2002).

[115] See RTC Decision, RTC records No. 10, pp. 2926-2927.

[116] Rollo (G.R. No. 189185; Vol. I), pp. 86-91.

[117] Id. at 1542-2543; based on the report submitted by Engr. Magno Porticos, Jr., the cost and
time frame estimate submitted to the PBGEA was based on the requirements of lowland and
relatively flat lands where road and drainage system to be constructed will be uniformly straight
and equidistant. The cost for plantations consisting of slope terrains and gullies, will vary. See
Engineering Committee Report on the Main Engineering Works Needed to Comply with the
Ordinance Banning Aerial Spray.

[118] G.R. No. 118127, April 12, 2005, 455 SCRA 308, 339-342.

[119]Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7,
2010, 637 SCRA 78, 167.

[120]Bartolome v. Social Security System, G.R. No. 192531, November 12, 2014; Garcia v.
Executive Secretary, G.R. No. 198554, July 30, 2012, 677 SCRA 750, 177.

[121]JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5,
1996, 260 SCRA 319, 331.

[122] Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 606 SCRA 258,
414.

[123] Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278, 288.

[124] City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348-349.

[125] Russell W. Galloway, "Means-End Scrutiny in American Constitutional Law" Loyola of

Los Angeles Law Review, Vol. 21, p. 449, available at
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1557&context=llr last accessed
August 16, 2016.

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[126]
Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156052, February 13, 2008, 455
SCRA 92, 138.

[127]
See the Concurring Opinion of Justice Teresita J. de Castro in Garcia v. Drilon, G.R. No.
179267, June 25, 2013, 699 SCRA 435, 447.

[128] Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 532 (1971).

[129] Id. Suspect class refers to alienage such as that based on nationality or race.

[130] Marcy Strauss, Reevaluating Suspect Classifications, Seattle University Law Review, Vol.
35:135, p. 146, available at http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?
article=2059&context=sulr, last accessed August 16, 2016; White Light Corporation v. City of
Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 436-437.

[131]
See Separate Concurring Opinion of J. Puno (ret.) in Ang Ladlad LGBT Party v.
Commission on Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 81, 94.

[132] Disini, Jr. v. Secretary of Justice, G.R. No. 203335, February 18, 2014, 716 SCRA 237,
301.

[133] In determining the reasonableness of a classification, one must look beyond the
classification to the purpose of the law which is the elimination of a mischief. This gives rise to
two (2) classes: the first consists of all individuals possessing the defining character or
characteristics of the legislative classification ("Trait"); the second would consist of all
individuals possessing or tainted by the mischief at which the law aims. See Joseph Tussman
and Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REV. 341 (1949),
available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?
article=3493econtext=californialawreview Last accessed August 16, 2016.

[134] RTC records no. 8, pp. 2361-2362 (Submitted as Exhibit "10" of the petitioners-
intervenors).

[135] This includes Hand sprayers and atomizers, Hand compressed sprayers, Knapsack
sprayers, Tractor-mounted sprayer, Motorized knapsack mist blowers, Ultra low volume or
controlled-droplet applicators (ULV/CDA), Fogging machines/fogair sprayers, Hand-carried
dusters, Hand-carried granule applicators, Power dusters, Aerial application (Aircraft sprayers),
and Injectors and fumigation equipment (S.K. Pal and S.K. Das Gupta, "Pesticide Application"
Skill Development Series-No. 17, ICRISAT Training and Fellowship Program, International
Crops Research Institute for the Semi-Arid Tropics, available at
http://oar.icrisat.org/2430/l/Pesticide-Application.pdf, accessed August 16, 2016, 1:52 p.m.

[136]Food and Agriculture Organization of the United States. Guidelines on Good Agricultural
Practice for Ground Application of Pesticides. Rome 2001.

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[137] Susan Cordell, and Paul B. Baker, Pesticide Drift, available at

http://extension.arizona.edu/sites/extension.arizona.edu/files/pubs/az1050.pdf, last accessed
August 16, 2016.

[138] Id.

[139] F.M. Fishel and J.A. Ferrell, Managing Pesticide Drift, available at
http://edis.ifas.ufl.edu/pi232, last accessed August 16, 2016.

[140] Rollo (G.R. No. 189185; Vol. III), p. 1548; Summary Report on the Assessment and
Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.

[141] Rollo (G.R. No. 189185; Vol. III), p. 1549; Summary Report on the Assessment and
Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.

[142]Id. at 1566; According to Regional Health Director of the Department of Health (DOH)
Paulyn Jean B. Rosell-Ubial (now the Secretary of Health), the ban against aerial spraying and
adoption of ground spraying would not eliminate the hazards of the pesticides to which workers
and residents within and around banana plantations might be exposed.

[143] Tussman and tenBroek.

[144] David M. Treiman, Equal Protection and Fundamental Rights - A Judicial Shell Game, 15
Tulsa L. J. 183, 191 (1979), available at:
http://digitalcommons.law.utulsa.edu/cgi/reviewcontent.cgi?article=1510&context=/tlr, last
accessed August 16, 2016.

[145]Rollo, (G.R. No. 189185; Vol. II), pp. 1257-1258; According to respondents' witness, Mr.
Richard Billington, the drift at the edge of an area sprayed from the air results to approximately
half of the corresponding value for ground application. This observation was based on the
AgDrift Model, developed under a Cooperative Research and Development Agreement
(CRADA) between the Spray Drift Task Force (SDTF) of the US Environmental Protection
Agency (EPA) and the US Department of Agriculture - Agricultural Research Service (USDA-
ARS).

[146] Tussman and tenBroek, supra at 133.

[147] Rollo, G.R. No. 189185, Vol. I, pp. 102-103.

[148] The rational basis approach partakes of two (2) forms: the deferential and the
nondeferential rational relation test. In deferential rational basis test, the government action is
always deemed constitutional if it has any conceivable valid purpose and if the means chosen
are arguably rational. In contrast, the nondeferential rational basis test requires a determination
that the government action serves an actual valid interest, hence (1) the government actually has
a valid purpose and (2) the means chosen are demonstrably rational (effective), see Galloway,
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Russell W., Means-End Scrutiny in American Constitutional Law, Loyola of Los Angeles
Review, Vol. 21, pp. 451-452, available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?
article=l557&context=llr, last accessed August 16, 2016.

[149] Section 3(e).

[150] Cabell v. Chavez-Salido, 454 U.S. 432 (1982), 70 L.Ed.2d 677.

[151] Treiman, supra at 148.

[152] Rollo (G.R. No. 189185; Vol. III), pp. 1564-1565.

[153] Id. at 1549.

[154] Andrew Jordan and Timothy O'Riordan, "The Precautionary Principle: A Legal and Policy
History" in The precautionary principle: Protecting Public Health, The Environment and The
Future of Our Children, p. 33, available at
http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf, last accessed August
16, 2016.

[155] UNESCO. The Precautionary Principle, World Commission on the Ethics of Scientific
Knowledge and Technology (COMEST), p. 7, available at
http://www.eubios.info/UNESCO/precprin.pdf, last accessed August 16, 2016.

[156] Section 1, Rule 20, Part V.

[157] Annotation to the Rules of Procedure on Environmental Cases, p. 158.

[158] IUCN, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation
and Natural Resource Management, available at
http://www.cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf. Last accessed August 16,
2016.

[159] Supra at 157.

[160] Andrew Stirling and Joel Tickner, "Implementing Precaution: Assessment and Application
Tools for Health and Environmental Decision-Making" in The Precautionary Principle:
Protecting Public Health, The Environment and The Future of Our Children, p. 182, available at
http://www.euro.who.int/_data/assets/pdf_file/0003/91173/E83079.pdf Last accessed August 16,
2016.

[161] Supra note 157, at 16.

[162] European Commission Communication from the Commission on the Precautionary

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Principle, available at http://eur-lex.eurorja.eu/legal-content/EN/TXT/?

uri=URlSERV%3A132042. Last accessed August 16, 2016.

[163] Supra note 157, at 29.

[164] Supra note 153.

[165] Position Paper of the Department of Health-Center for Health Development, Davao
Region, On the Issue of Aerial Spraying in Banana Plantations Within the Jurisdiction of Davao
City in G.R. No. 189185, Vol. III, pp. 1566-1567.

[166] United States v. Salaveria, 39 Phil. 102, 111 (1918).

[167] Supra note 103, at 111.

[168] G.R. No. 177807, October 11, 2011, 658 SCRA 853, 865-866.

[169] Supra note 166, at 112.

[170] 24 Phil. 165, 169 (1913).

[171] De la Cruz v. Paras, G.R. No. L-42571-72, July 25, 1983, 123 SCRA 569, 578.

[172] City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 353.

[173]White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA
417, 442 citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22 SCRA 424, 441.

[174] City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 327.

[175] Legaspi v. City of Cebu, G.R. No. 159692, December 10, 2013, 711 SCRA 771, 785.

[176]Creating the Fertilizer and Pesticide Authority and Abolishing the Fertilizer Industry
Authority.

[177] The eighth Whereas clause.

[178] Section 1, P.D. No. 1144.

[179]The delivery of basic services is devolved to the local government units. Sections 22 and
458 of the Local Government Code provides for an exhaustive enumeration of the functions and
duties devolved to the local government units.

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[180]Batangas CATV v. Court of Appeals, G.R. No. 138810, September 29, 2004, 439 SCRA
326, 340.

[181] Id.

[182] Id. at 341-342.

[183] G.R. No. 118127, April 12, 2005, 455 SCRA 308, 327.

[184] Id.

[185] Issued on August 3, 2009.

[186] The memorandum provides for the safety procedures in pesticide spraying, (Paragraph. II
[1]), safety handling (Paragraph II [2]) and post-application (Paragraph II [3]), including the
qualification of applicators ((Paragraph III), storing of fungicides (Paragraph IV), safety and
equipment of plantation personnel (Paragraph V).

[187] Paragraph II (1).

[188] Paragraph II (2).

[189] Paragraph II (3).

[190] Paragraph III.

[191] Paragraph IV.

[192] Paragraph V.

[193] Paragraph II(1)(b).

[194] Paragraph II(3)(d)(8).

[195] Section 3(e).

CONCURRING OPINION

LEONEN, J.:

I concur in the result. Ordinance No. 0309-07, Series of 2007 passed by Davao City is too broad
in, that it prohibits aerial spraying in agriculture regardless of the substance and the method of
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aerial spraying involved. This Court's Decision should be read in this narrow sense.

I add the following points to clarify the reasons for my vote.

First, nothing in the disposition of this case should be construed as an absolute prohibition for
the banning of aerial spraying of certain chemicals. Even if the Sangguniang Panlungsod
properly appreciated the harm caused by the spraying of chemicals that addressed the problem
of the Black Sigatoka, the resulting local legislation was too broad. Justification for one case
does not necessarily always provide justification for another case.

Second, it is clear that passing a sufficiently narrow ordinance banning aerial spraying of a
pesticide may be done by a local government unit. This can be justified by Section 16[1] of the
Local Government Code. The present code and the Constitution[2] provide sufficient basis for
that kind of autonomy.

Localized harm that affect specific residents and that may be unique to a certain municipality or
city should not await action from the national government. Local government units are not so
inutile as to be unable to sufficiently protect its citizens. Davao City can act. It does not need
Malacañang or the Congress to do what it already can.

I differ from the ponencia with respect to its interpretation of Presidential Decree No. 1144[3]
creating the Fertilizer and Pesticide Authority. In my view, nothing in the Decree's grant of
powers[4] prohibits local government units from regulating the mode of delivery of certain
allowed chemicals should there be clear harm caused to the residents of a municipality or city.
Certifying that a pesticide can be used is different from preventing the harm it can do when
applied in a certain way. Davao City did not intend to prohibit the pesticide, but merely the
method of its application.

Third, the precautionary principle embedded both in Article II, Section 16[5] and Article III,
Section 1[6] of the Constitution applies in this case.

There was science, but it was uncertain.

The precautionary principle should also be qualified by transience as science-progressive and

must be cost-effective. Environmental measures must "ensure . . . benefits at the lowest possible
cost."[7]

However, I agree that the precautionary principle does not make sense if there is absolutely no
proof of causation.

Fourth, I do not see the application of the equal protection clause. The discrimination against
large plantation owners enjoying huge economies of scale is, at this point, speculative.

Lastly, nothing in this Decision should, in my view, be construed as a negation of the findings of
fact of the trial court. This is especially with regard to the testimony of the persons affected by
the aerial spray.

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The broad construction of the prohibition in the Ordinance should not be viewed as erasing the
experience of the residents of Davao City. In other words, government still needs to address
their problems with the most urgent dispatch.

[1] LOC. GOV. CODE, sec. 16 provides:

SECTION 16. General Welfare. — Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate
or incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.

[2] CONST., art. II, sec. 25 provides:

SECTION 25. The State shall ensure the autonomy of local governments.

[3]Pres. Decree No. 1144 (1977), Creating the Fertilizer and Pesticide Authority and Abolishing
the Fertilizer Industry Authority.

[4] Pres. Decree No. 1144 (1977), sec. 6 provides:

SECTION 6. Powers and Functions. — The FPA shall have jurisdiction, on over all existing
handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the
following powers and functions:

I. Common to Fertilizers, Pesticides and other Agricultural Chemicals

1. To conduct an information campaign regarding the safe and effective use of

these products;

2. To promote and coordinate all fertilizer and pesticides research in cooperation

with the Philippine Council for Agriculture and Resources Research and other
appropriate agencies to ensure scientific pest control in the public interest,
safety in the use and handling of pesticides, higher standards and quality of
products and better application methods;

3. To call upon any department, bureau, office, agency or instrumentality of the

government, including government-owned or controlled corporations, or any
officer or employee thereof and on the private sector, for such information or
assistance as it may need in the exercise of its powers and in the performance

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of its functions and duties;

4. To promulgate rules and regulations for the registration and licensing of

handlers of these products, collect fees pertaining thereto, as well as the
renewal, suspension, revocation, or cancellation of such registration or licenses
and such other rules and regulations as may be necessary to implement this
Decree;

5. To establish and impose appropriate penalties on handlers of these products for

violations of any rules and regulations established by the FPA;

6. To institute proceedings against any person violating any provisions of this

Decree and/or such rules and regulations as may be promulgated to implement
the provisions of this Decree after due notice and hearing;

7. To delegate such selected privileges, powers or authority as may be allowed by

law to corporation, cooperatives, associations or individuals as may presently
exist or be organized to assist the FPA in carrying out its functions, and;

8. To do any and all acts not contrary to law or existing decrees and regulations as
may be necessary to carry out the functions of the FPA.

II. Fertilizers

1. To make a continuous assessment of the fertilizer supply and demand situation,

both domestic and worldwide;

2. To establish and enforce sales quotas, production schedules, distributions areas

and such other marketing regulations as may be necessary to assure market
stability and viable operations in the industry;

3. To determine and set the volume and prices both wholesale and retail; of
fertilizer and fertilizer inputs;

4. To establish and implement regulations governing the import and export of

fertilizer and fertilizer inputs, and when necessary, to itself import and/or
export such items, including the negotiating and contracting of such imports
and exports;

5. To import fertilizer and fertilizer inputs exempt from customs duties,

compensating and sales taxes and all other taxes, and to purchase naptha
locally free from specific taxes and the corresponding duty on the imported
crude, and to sell or convey such fertilizer or fertilizer input to any individual
association, or corporation likewise exempt from the payment of customs
duties and all other taxes;

6. To control and regulate all marketing companies, whether importer, indentor,

wholesaler or retailer; by controlling and regulating prices, terms, mark-ups,
distribution channels, promotion, storage and other marketing factors in the
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domestic fertilizer market;

7. To regulate and control quality of the different grades of fertilizer and to set
new grades when necessary;

8. To control and regulate all aspects of domestic fertilizer production, including

the utilization of idle capacity and the orderly expansion of the industry and to
compel the utilization of unused or underutilized capacities of fertilizer
companies and to direct any improvements, modifications or repairs as may be
necessary to accomplish this;

9. To approve or to reject the establishment of new fertilizer or fertilizer input

plants and the expansion or contraction of existing capacities;

10. To obtain complete assess to all pertinent information on the operations of the
industry, including audited and/or unaudited financial statements, marketing,
production, and inventory data;

11. To control and assist in the financing of the importation of fertilizer and
fertilizers inputs of production, of inventory and working capital, and of the
expansion of the industry;

12. To do all such things as may be necessary to maintain an adequate supply of

fertilizers to the domestic market at reasonable prices while maintaining the
long-term viability of the industry.

III. Pesticides and Other Agricultural Chemicals

1. To determine specific uses or manners of use for each pesticide or pesticide

formulation;

2. To establish and enforce tolerance levels and good agricultural practices for use
of pesticides in raw agricultural commodities;

3. To restrict or ban the use of any pesticide or the formulation of certain

pesticides in specific areas or during certain periods upon evidence that the
pesticide is an imminent hazard, has caused, or is causing widespread serious
damage to crops, fish or livestock, or to public health and the environment;

4. To prevent the importation of agricultural commodities containing pesticide

residues above the accepted tolerance levels and to regulate the exportation of
agricultural products containing pesticide residue above accepted tolerance
levels;

5. To inspect the establishment and premises of pesticide handlers to insure that

industrial health and safety rules and anti-pollution regulations are followed;

6. To enter and inspect farmers' fields to ensure that only the recommended
pesticides are used in specific crops in accordance with good agricultural
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practice;

7. To require if and when necessary, of every handler of these products, the

submission to the FPA of a report stating the quantity, value of each kind of
product exported, imported, manufactured, produced, formulated, repacked,
stored, delivered, distributed, or sold;

8. Should there by any extraordinary and unreasonable increases in prices or a

severe shortage in supply of pesticides, or imminent dangers or either
occurrences, the FPA is empowered to impose such controls as may be
necessary in the public interest, including but not limited to such restrictions
and controls as the imposition of price ceilings, controls on inventories,
distribution and transport, and tax-free importations of such pesticides or raw
materials thereof as may be in short supply.

[5] CONST., art. II, sec. 16 provides:

SECTION 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.

[6] CONST., art. III, sec. 1 provides:

SECTION 1. No person shall be deprived of life, liberty, or property without due process of
laws.

[7] United Nations Framework Convention on Climate Change, art. 3(3).

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