7/27/2019 Envi Law 2

1/23

MALACAANGM a n i l a

PRESIDENTIAL DECREE No. 1151

PHILIPPINE ENVIRONMENTAL POLICY

WHEREAS, the individual and, at times, conflicting, demands of population growth, urbanization, industrial expansion, rapid natural resourcesutilization and increasing technological advances have resulted in a piecemeal-approach concept of environmental protection;

WHEREAS, such tunnel-vision concept is not conducive to the attainment of an ideal environmental situation where man and nature can thrive in

harmony with one another; and

WHEREAS, there is now an urgent need to formulate an intensive, integrated program of environmental protection that will bring about a concertedeffort towards the protection of the entire spectrum of the environment through a requirement of environmental impact assessments and statements:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do herebyorder and decree:

Section 1. Policy. It is hereby declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man andnature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and futuregenerations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being.

Section 2. Goal. In pursuing this policy, it shall be the responsibility of the Government, in cooperation with concerned private organizations andentities, to use all practicable means, consistent with other essential considerations of national policy, in promoting the general welfare to the end thatthe Nation may (a) recognize, discharge and fulfill the responsibilities of each generation as trustee and guardian of the environment for succeedinggenerations, (b) assure the people of a safe, decent, healthful, productive and aesthetic environment, (c) encourage the widest exploitation of theenvironment without degrading it, or endangering human life, health and safety or creating conditions adverse to agriculture, commerce and industry,(d) preserve important historic and cultural aspects of the Philippine heritage, (e) attain a rational and orderly balance between population and resourceuse, and (f) improve the utilization of renewable and non-renewable resources.

Section 3. Right to a Healthy Environment. In furtherance of these goals and policies, the Government recognizes the right of the people to a healthfulenvironment. It shall be the duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment.

Section 4. Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the nationalgovernment, including government-owned or controlled corporations, as well as private corporations firms and entities shall prepare, file and include inevery action, project or undertaking which significantly affects the quality of the environment a detail statement on

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-termproductivity of the same; and

(e) whenever a proposal involve the use of depletable or non-renewable resources, a finding must be made that such use and commitment arewarranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matterinvolved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same.

Section 5. Agency Guidelines. The different agencies charged with environmental protection as enumerated in Letter of Instruction No. 422 shall, withinsixty (60) days from the effectivity of this Decree, submit to the National Environmental Protection Council (NEPC), their respective guidelines, rulesand regulations to carry out the provisions of Sec. 4 hereof on environmental impact assessments and statements.

Section 6. Repealing Clause. All Acts, Presidential Decrees, executive orders, rules and regulations or parts thereof which are inconsistent with theprovisions of this Decree are hereby repealed, amended or modified accordingly.

Section 7. Effectivity. This Decree shall take effect immediately.

Done in the City of Manila this 6th day of June in the year of Our Lord, nineteen hundred and seventy-nine.

PRESIDENTIAL DECREENo. 1586

Subject: ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENTSYSTEM INCLUDING OTHER ENVIRONMENTAL

MANAGEMENT RELATED MEASURES AND FOR OTHERPURPOSES

WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates the establishment and institutionalization ofa system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of environmental quality;

WHEREAS, the regulatory requirements of Environmental Impact Statement and Assessment instituted in pursuit of this national environmentalprotection program have to work into their full regulatory and procedural details in a manner consistent with the goals of the program.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do herebyorder and declare:Section 1. Policy. - It is hereby declared the policy of the State to attain and maintain a rational and orderly balance between socio-economic growth andenvironmental protection.

Section 2. Environmental Impact Statement System. - There is hereby established a Environmental Impact Statement System founded and based on theenvironmental impact statement required, under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities of the nationalgovernment, including government owned or controlled corporations, as well as private corporations, firms and entities for every proposed project andundertaking which significantly affect the quality of the environment.

7/27/2019 Envi Law 2

2/23

Section 3. Determination of Lead Agency. - The Minister of Human Settlements or his designated representative is hereby authorized to name the LeadAgencies referred to in Section 4 of Presidential Decree No. 1151, which shall have jurisdiction to undertake the preparation of the necessaryenvironmental impact statements on declared environmentally critical projects and areas. All Environmental Impact Statements shall be submitted tothe National Environmental Protection Council for review and evaluation.

Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the Philippines may, on his own initiative or uponrecommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country asenvironmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or areawithout first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the propermanagement of said critical project or area, the President may by his proclamation reorganized such government offices, agencies, institutions,

corporations or instrumentalities including the realignment of government personnel, and their specific functions and responsibilities. PRIME-M4 Page2 of 3 For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said criticalproject(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protectivemeasures against calamitous factors such as earthquake, floods, water erosion and others, and (d) perform such other functions as may be directed bythe President from time to time.

Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and areas not declared by the Presidents as environmentally criticalshall be considered as non-critical and shall not be required to submit an environmental impact statement. The National Environmental ProtectionCouncil, thru the Ministry of Human Settlements may however require non-critical projects and undertakings to provide additional environmentalsafeguards as it may deem necessary.

Section 6. Secretariat. - The National Environmental Protection Council is hereby authorized to constitute the necessary secretariat which will administerthe Environmental Impact Statement System and undertake the processing and evaluation of environmental impact statement.

Section 7. Management and Financial Assistance. - The Ministry of Human Settlements is hereby authorized to provide management and financialsupport to government offices and instrumentalities placed under it's supervision pursuant to this Decree financed from its existing appropriation orfrom budgetary augmentation as the Minister of Human Settlements may deem necessary.

Section 8. Rules and Regulations. - The National Environmental Protection Council shall issue the necessary rules and regulations to implement thisDecree. For this purpose, the National Pollution Control Commission may be availed of as one of its implementing arms, consistent with the powers andresponsibilities of the National Pollution Control Commission as provided in P.D. No. 984.

Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and conditions in theissuance of the Environmental Compliance Certificate, or of the standards, rules and regulations issued by the National Environmental ProtectionCouncil pursuant to this Decree shall be punished the suspension or cancellation of his/its certificate and/or a fine in an amount not to exceed fiftythousand pesos (50,000.00) for every violation thereof, at the discretion of the National Environmental Protection Council.

Section 10. Environmental Revolving Fund. - Proceeds from the penalties prescribed in the preceding Section 9 and other penalties imposed by theNational Pollution Control Commission as authorized in P.D. 984 shall be automatically appropriated into an Environment Revolving Fund herebycreated as an exemption to P.D. 711 and P.D. 1234. The fund shall be used exclusively for the operations of the National Environmental ProtectionCouncil and the National Pollution Control Commission in the implementation of this Decree. The rules and regulations for the utilization of this fund

shall be formulated by the Ministry of Human Settlements and submitted to the President for approval.

Section 11. Repealing Clause. - The inter-agency Advisory Council of the National Pollution Control Commission created under Section 4 of P.D. 984 ishereby abolished and its powers and responsibilities are forthwith delegated and transferred to the National Environmental Protection Council. Alllaws, decrees, executive orders, rules and regulations, inconsistent herewith are hereby repealed, amended or modified accordingly. PRIME-M4 Page 3of 3

Section 12. Effectivity Clause. - This Decree shall take effect immediately. DONE in the City of Manila, this 11th day of June in the year of Our LordNineteen Hundred and Seventy-Eight.

PROCLAMATION NO. 2146

PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS ENVIRONMENTALLY CRITICAL AND WITHIN THE SCOPE OF THEENVIRONMENTAL IMPACT STATEMENT SYSTEM ESTABLISHED UNDER PRESIDENTIAL DECREE NO. 1586

WHEREAS, it is the national policy to attain and maintain a rational and orderly balance between socio-economic growth and environmentalconservation and protection;

WHEREAS, there is an urgent need to bring about an intensive, integrated program of environmental protection through a requirement ofenvironmental impact assessments and statements;

WHEREAS, the environmental impact statement system established under Presidential Decree No, 1586 calls for the proper management ofenvironmentally critical areas;

WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates the establishment and institutionalization ofa system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of environmental protection and conservation;

WHEREAS, the national leadership mandates the establishment of such a system to regulate and minimize the environmental impacts of projects andundertakings which may significantly affect the quality of the environment in Presidential Decree No. 1586; and

WHEREAS, in the effective implementation of such a system, there arises the need to identify and declare certain projects determined to beenvironmentally critical;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law, hereby proclaim thefollowing areas and types of projects as environmentally critical and within the scope of the Environmental Impact Statement System;

7/27/2019 Envi Law 2

3/23

7/27/2019 Envi Law 2

4/23

The mooring facility would serve as the temporary docking site of NAPOCOR's power barge, which, due to turbulent waters at its former mooring sitein Calapan, Oriental Mindoro, required relocation to a safer site like Minolo Cove. The 14.4 megawatts power barge would provide the main source ofpower for the entire province of Oriental Mindoro pending the construction of a land-based power plant in Calapan, Oriental Mindoro. The ECC for themooring facility was valid for two years counted from its date of issuance or until 30 June 1999.4

Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto Galera,5 sought reconsideration of the ECC issuance. RED Principe, however,denied petitioners' plea on 15 July 1997. On 21 July 1997, petitioners filed a complaint with the Regional Trial Court of Manila, Branch 7, for thecancellation of the ECC and for the issuance of a writ of injunction to stop the construction of the mooring facility. Impleaded as defendants were thefollowing: (1) NAPOCOR, (2) RED Principe, (3) DENR Region IV Technical Director for Environment Oscar Dominguez, (4) Oriental Mindoro ElectricCooperative ("ORMECO"), which is engaged in the distribution of electricity in Oriental Mindoro, and (5) certain officials of Puerto Galera.6 Petitionerssubsequently amended their complaint to include as additional defendants the elective officials of Oriental Mindoro represented by then Governor

Rodolfo G. Valencia. Petitioners further prayed for the demolition of mooring structures that respondents had already built.

On 28 July 1997, prior to the filing of the amended complaint, the trial court issued a 20-day temporary restraining order enjoining the construction ofthe mooring facility. However, the trial court lifted the same on 6 August 1997 on NAPOCOR's manifestation that the provincial government of OrientalMindoro was the one undertaking the construction of the mooring facility.7

On 28 August 1997, before filing their answers, respondents ORMECO and the provincial officials of Oriental Mindoro moved to dismiss the complaint.These respondents claimed that petitioners failed to exhaust administrative remedies, rendering the complaint without cause of action. They alsoasserted that the Manila RTC has no jurisdiction to enjoin the construction of the mooring facility in Oriental Mindoro, which lies outside the ManilaRTC's territorial jurisdiction.

Petitioners opposed the motion on the ground that there was no need to exhaust administrative remedies. They argued that the issuance of the ECC wasin patent violation of Presidential Decree No. 1605, 8 Sections 26 and 27 of Republic Act No. 7160,9 and the provisions of DENR DepartmentAdministrative Order No. 96-37 ("DAO 96-37") on the documentation of ECC applications. Petitioners also claimed that the implementation of the ECC

was in patent violation of its terms.

In its order of 7 November 1997, the trial court granted the motion and dismissed petitioners' complaint.

Hence, this petition.

The Ruling of the Trial Court

The trial court's order dismissing the complaint reads in part:

After careful evaluation and analysis, this Court finds the Motion to Dismiss tenable and meritorious.

Petitioners have clearly failed to exhaust all administrative remedies before taking this legal action in Court x x x.

It is x x x worth mentioning that the decision of the Regional Director may still be x x x elevated to the Office of the Secretary of the DENR tofully comply with the process of exhaustion of administrative remedies. And well settled is the rule in our jurisdiction that before bringing anaction in or resorting to the Courts of Justice, all remedies of administrative character affecting or determinative of the controversy at that levelshould first be exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786, February 27, 1978). And petitioners' failure to exhaustadministrative remedies renders his [sic] petition dismissible (Chia vs. Acting Collector of Customs, 177 SCRA 755). And a dismissal on theground of failure to exhaust administrative remedies is tantamount to a dismissal based on lack of cause of action (Baguiro vs. Basa, Jr., 214SCRA 437; Pineda vs. CFI of Davao, 111 Phil. 643; Sarabia vs. Secretary of Agriculture & Natural Resources, L-16002, May 23, 1961; Gone, et al. vs.District Engineer, et. al., L-22782, August 29, 1975;Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31, 1979) although it does not affect the

jurisdiction of the court over the subject matter (Mun. of La Trinidad, et al. vs. CFI of Baguio-Benguet, et al., L-33889, June 28, 1983).

Moreover, this Court finds the Opposition of the Petitioners highly untenable and bereft of merits that the controverted act in question ispatently illegal and there was an immediate need for judicial intervention.

The ECC in question was issued by the Regional Office of the DENR which has jurisdiction and authority over the same . . .. And corollary tothis, the issue as to whether or not the Minolo Cove is within the enclosed coves and waters embraced by Puerto Galera bay and protected byMedio island is a clear question of fact which the DENR may appropriately resolve before resorting to [the] Court[s].

This Court is likewise aware and cognizant of its territorial jurisdiction in the enforcement of Writ of Injunction. That truly, [a] writ ofinjunction can only be enforced within [the] territorial jurisdiction of this Court but not for acts which are being or about to be committedoutside its territorial jurisdiction. Thus, inPhilippine National Bank vs. Pineda, 197 SCRA 1, the Honorable Supreme Court ruled: "Regional TrialCourts can only enforce their writs of injunction within their respective designated territories. Furthermore, we find the issuance of thepreliminary injunction directed against the Provincial Sheriff of Negros Occidental a jurisdictional paux [ sic] pas (from Black Dictionarymeans jurisdictional falsity) as the Courts of First Instance now Regional Trial Court[s], can only enforce their writs of injunction within theirrespective designated territories.

And finally, this Court is not unmindful of the relevant and square application in the case at bar of Presidential Decree No. 1818, ExecutiveOrder No. 380 dated November 27, 1989, and Circular No. 2-91 of the Supreme Court that the National Power Corporation (NPC) is a publicutility, created under special legislation, engaged in the generation and distribution of electric power and energy. The mooring site of NPC inPuerto Galera, Oriental Mindoro is one of its infrastructure projects falling within the mantle of Executive Order No. 380, November 27, 1989 xx x.

And as held by the Supreme Court in the case of National Power Corporation vs. Honorable Abraham P. Vera, et al., 170 SCRA 721, courts arewithout jurisdiction to issue injunctive writs against [the] National Power Corporation. The latter enjoys the protective mantle of P.D. 1818,(Circular No. 2-91).

xxx xxx xxx

Injunction in this case is not a mere ancillary [sic] writ but the main action itself together with the Annulment of the Environmental ClearanceCertificate (ECC). Even assuming arguendo that the court [can] annul the ECC how can the latter enforce the same against the ProvincialGovernment of Oriental Mindoro which was impleaded by the petitioners as a necessary party together with the Oriental Mindoro Electric

7/27/2019 Envi Law 2

5/23

Cooperative and the government officials of Puerto Galera, Oriental Mindoro, whose acts and functions are being performed outside theterritorial jurisdiction of this court? x x x Indisputably, the injunction and annulment of ECC as prayed for in the petition are inseparable x x x.

The conclusion, therefore, is inescapable that petitioners have failed to exhaust all the available administrative remedies and this Court has nojurisdiction to issue the injunctive writ prayed for in the Amended [Complaint].10

The Issue

The issue is whether the trial court erred in dismissing petitioners' complaint for lack of cause action and lack of jurisdiction.

The Ruling of the Court

The petition has no merit.

Jurisdiction of the Manila RTC over the Case

Jurisdiction over the subject matter of a case is conferred by law. Such jurisdiction is determined by the allegations in the complaint, irrespective ofwhether the plaintiff is entitled to all or some of the reliefs sought.11

A perusal of the allegations in the complaint shows that petitioners' principal cause of action is the alleged illegality of the issuance of the ECC. Theviolation of laws on environmental protection and on local government participation in the implementation of environmentally critical projects is anissue that involves the validity of NAPOCOR's ECC. If the ECC is void, then as a necessary consequence, NAPOCOR or the provincial government ofOriental Mindoro could not construct the mooring facility. The subsidiary issue of non-compliance with pertinent local ordinances in the construction of

the mooring facility becomes immaterial for purposes of granting petitioners' main prayer, which is the annulment of the ECC. Thus, if the court hasjurisdiction to determine the validity of the issuance of the ECC, then it has jurisdiction to hear and decide petitioners' complaint.

Petitioners' complaint is one that is not capable of pecuniary estimation. It falls within the exclusive and original jurisdiction of the Regional Trial Courtsunder Section 19(1) of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691. The question of whether petitioners should file their complaint inthe Regional Trial Court of Manila or Oriental Mindoro then becomes a matter of venue, to be determined by the residence of the parties.12

Petitioners' main prayer is the annulment of the ECC. The principal respondent, DENR Region IV, has its main office at the L & S Building, RoxasBoulevard, Manila. Regional Executive Director Principe of the DENR Region IV, who issued the ECC, holds office there. Plainly, the principalrespondent resides in Manila, which is within the territorial jurisdiction of the Manila RTC. Thus, petitioners filed their complaint in the proper venue.

On the other hand, the jurisdiction of Regional Trial Courts to issue injunctive writs is limited to acts committed or about to be committed within theirjudicial region.13 Moreover, Presidential Decree No. 1818 ("PD No. 1818") prohibited14 courts from issuing injunctive writs against governmentinfrastructure projects like the mooring facility in the present case. Republic Act No. 8975 ("RA No. 8975"), which took effect on 26 November 2000,superseded PD No. 1818 and delineates more clearly the coverage of the prohibition, reserves the power to issue such writs exclusively with this Court,and provides penalties for its violation.15 Obviously, neither the Manila RTC nor the Oriental Mindoro RTC can issue an injunctive writ to stop theconstruction of the mooring facility. Only this Court can do so under PD No. 1818 and later under RA No. 8975. Thus, the question of whether theManila RTC has jurisdiction over the complaint considering that its injunctive writ is not enforceable in Oriental Mindoro is academic.

Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC, although it could not issue an injunctive writ against theDENR or NAPOCOR. However, since the construction of the mooring facility could not proceed without a valid ECC, the validity of the ECC remainsthe determinative issue in resolving petitioners' complaint.

Exhaustion of Administrative Remedies

The settled rule is before a party may seek the intervention of the courts, he should first avail of all the means afforded by administrative processes.Hence, if a remedy within the administrative machinery is still available, with a procedure prescribed pursuant to law for an administrative officer todecide the controversy, a party should first exhaust such remedy before resorting to the courts. The premature invocation of a court's interventionrenders the complaint without cause of action and dismissible on such ground.16

RED Principe of the DENR Region IV Office issued the ECC based on (1) Presidential Decree No. 1586 ("PD No. 1586") and its implementing rulesestablishing the Environmental Impact Statement System, (2) DAO 96-3717 and (3) the Procedural Manual of DAO 96-37. Section 418 of PD No. 1586requires a proponent of an environmentally critical project, or a project located within an environmentally critical area as declared by the President, tosecure an ECC prior to the project's operation.19 NAPOCOR thus secured the ECC because the mooring facility in Minolo Cove, while not anenvironmentally critical project, is located within an environmentally critical area under Presidential Proclamation No. 2146, issued on 14 December1981.20

The rules on administrative appeals from rulings of the DENR Regional Directors on the implementation of PD No. 1586 are found in Article VI of DAO96-37, which provides:

SECTION 1.0.Appeal to the Office of the Secretary. Any party aggrieved by the final decision of the RED may, within 15 days from receipt ofsuch decision, file an appeal with the Office of the Secretary. The decision of the Secretary shall be immediately executory.

SECTION 2.0. Grounds for Appeal. The grounds for appeal shall be limited to grave abuse of discretion and serious errors in the findings offact which would cause grave or irreparable injury to the aggrieved party. Frivolous appeals shall not be countenanced.

SECTION 3.0. Who May Appeal. The proponent or any stakeholder, including but not limited to, the LGUs concerned and affectedcommunities, may file an appeal.

The DENR Procedural Manual for DAO 96-37 explains these provisions thus:

Final decisions of the RED may be appealed. These decisions include those relating to the issuance or non-issuance of an ECC, and the imposition offines and penalties. By inference, the decision of the Secretary on the issuance or non-issuance of the ECC may also be appealed based on thisprovision. Resort to courts prior to availing of this remedy would make the appellant's action dismissible on the ground of non-exhaustion of administrativeremedies.

7/27/2019 Envi Law 2

6/23

The right to appeal must be exercised within 15 days from receipt by the aggrieved party of such decision. Failure to file such appeal withinthe requisite period will result in the finality of the RED's or Secretary's decision(s), which can no longer be disturbed.

An appeal shall not stay the effectivity of the RED's decision, unless the Secretary directs otherwise.

The right to appeal does not prevent the aggrieved party from first resorting to the filing of a motion for reconsideration with the RED, to givethe RED an opportunity to re-evaluate his decision. (Emphasis added)

Instead of following the foregoing procedure, petitioners bypassed the DENR Secretary and immediately filed their complaint with the Manila RTC,depriving the DENR Secretary the opportunity to review the decision of his subordinate, RED Principe. Under the Procedural Manual for DAO 96-37

and applicable jurisprudence, petitioners' omission renders their complaint dismissible for lack of cause of action.21 Consequently, the Manila RTC didnot err in dismissing petitioners' complaint for lack of cause of action.

On the Alleged Patent Illegality of the ECC

Petitioners nevertheless contend that they are exempt from filing an appeal with the DENR Secretary because the issuance of the ECC was in patentviolation of existing laws and regulations. These are (1) Section 1 of Presidential Decree No. 1605, as amended, (2) Sections 26 and 27 of Republic Act No.7160 (Local Government Code of 1991), and (3) the provisions of DAO 96-37 on the documentary requirements for the zoning permit and socialacceptability of the mooring facility.

Petitioners' contention is without merit. While the patent illegality of an act exempts a party from complying with the rule on exhaustion Ofadministrative remedies,22 this does not apply in the present case.

Presidential Decree No. 1605

Presidential Decree No. 1605 ("PD No. 1605"),23 as amended by Presidential Decrees Nos. 1605-A and 1805, declares as ecologically threatened zone "thecoves and waters embraced by Puerto Galera Bay as protected by Medio Island." This decree provides in part:

Section 1. Any provision of law to the contrary notwithstanding, the construction of marinas, hotels, restaurants, other commercial structures;commercial or semi-commercial wharfs [sic]; commercial docking within the enclosed coves of Puerto Galera; the destruction of its mangrove stands; thedevastation of its corals and coastline by large barges, motorboats, tugboat propellers, and any form of destruction by other human activities are hereby

prohibited.

Section 2. x x x

No permit for the construction of any wharf, marina, hotel, restaurants and other commercial structures in Puerto Galera shall be issued withoutprior approval of the Office of the President upon the recommendation of the Philippine Tourism Authority. (Emphasis supplied)

NAPOCOR claims that since Minolo Cove lies outside of "Puerto Galera Bay as protected by Medio Island",24 PD No. 1605 does not apply to this case.However, petitioners assert that Minolo Cove is one of the "enclosed coves of Puerto Galera"25 and thus protected under PD No. 1605. This is a questionof fact that the DENR Secretary should have first resolved. In any event, there is no dispute that NAPOCOR will use the mooring facility for its powerbarge that will supply 14.4 megawatts of electricity to the entire province of Oriental Mindoro, including Puerto Galera. The mooring facility isobviously a government-owned public infrastructure intended to serve a basic need of the people of Oriental Mindoro. The mooring facility is not a"commercial structure; commercial or semi-commercial wharf or commercial docking" as contemplated in Section 1 of PD No. 1605. Therefore, theissuance of the ECC does not violate PD No. 1605 which applies only to commercial structures like wharves, marinas, hotels and restaurants.

Sections 26 and 27 of RA No. 7160

Congress introduced Sections 26 and 27 in the Local Government Code to emphasize the legislative concern "for the maintenance of a sound ecologyand clean environment."26 These provisions require every national government agency or government-owned and controlled corporation to hold priorconsultations with the local government unit concerned and to secure the prior approval of its sanggunian before implementing "any project or programthat may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover and extinction of animal or

plant species." Sections 26 and 27 respectively provide:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every national agency orgovernment-owned or controlled corporation authorized or involved in the planning and implementation of any project or program that maycause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover and extinction of animalor plant species, to consult with the local government units, non-governmental organizations, and other sectors concerned and explain thegoals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance,and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. No project or program shall be implemented by government authorities unless the consultationsmentioned in Section . . . 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupantsin areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordancewith the provisions of the Constitution.

In Lina, Jr. v. Pao,27 the Court interpreted these provisions in this manner:

Section 27 of the Code should be read in conjunction with Section 26 thereof x x x.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among thoseenumerated in Sections 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletionof non-renewable resources; (4) may result in loss of crop land, rangeland, or forest cover; (5) may eradicate certain animal or plant species;and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will beimplemented.

Again, Sections 26 and 27 do not apply to this case because as petitioners admit,28 the mooring facility itself is not environmentally critical and hencedoes not belong to any of the six types of projects mentioned in the law. There is no statutory requirement for the concerned sanggunian to approve the

7/27/2019 Envi Law 2

7/23

construction of the mooring facility. It is another matter if the operation of the power barge is at issue. As an environmentally critical project that causespollution, the operation of the power barge needs the prior approval of the concerned sanggunian. However, what is before this Court is only theconstruction of the mooring facility, not the operation of the power barge. Thus, the issuance of the ECC does not violate Sections 26 and 27 of RA No.7160.

Documentary Requirements for ECC Applications

Under DAO 96-37, an ECC applicant for a project located within an environmentally critical area is required to submit an Initial EnvironmentExamination, which must contain a brief description of the environmental setting and a documentation of the consultative process undertaken, whenappropriate.29 As part of the description of the environmental setting, the ECC applicant must submit a certificate of locational clearance or zoning

certificate.

Petitioners further contend that NAPOCOR, in applying for the ECC, did not submit to the DENR Region IV Office the documents proving the holdingof consultations and the issuance of a locational clearance or zoning certificate. Petitioners assert that this omission renders the issuance of the ECCpatently illegal.

The contention is also without merit. While such documents are part of the submissions required from a project proponent, their mere absence does notrender the issuance of the ECC patently illegal. To justify non-exhaustion of administrative remedies due to the patent illegality of the ECC, the publicofficer must have issued the ECC "[without any] semblance of compliance, or even an attempt to comply, with the pertinent laws; when manifestly, theofficer has acted without jurisdiction or has exceeded his jurisdiction, or has committed a grave abuse of discretion; or when his act is clearly andobviously devoid of any color of authority."30

RED Principe, as chief of DENR Region IV, is the officer duly authorized under DAO 96-3731 to issue ECCs for projects located within environmentallycritical areas. RED Principe issued the ECC on the recommendation of Amelia Supetran, the Director of the Environmental Management Bureau. Thus,RED Principe acted with full authority pursuant to DENR regulations. Moreover, the legal presumption is that he acted with the requisiteauthority.32 This clothes RED Principe's acts with presumptive validity and negates any claim that his actions are patently illegal or that he gravelyabused his discretion. While petitioners may present proof to the contrary, they must do so before the proper administrative forum before resorting to

judicial remedies.

On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in immediately seeking judicial recourse because NAPOCOR is guilty of violating the conditions of theECC, which requires it to secure a separate ECC for the operation of the power barge. The ECC also mandates NAPOCOR to secure the usual localgovernment permits, like zoning and building permits, from the municipal government of Puerto Galera.

The contention is similarly without merit. The fact that NAPOCOR's ECC is subject to cancellation for non-compliance with its conditions does notjustify petitioners' conduct in ignoring the procedure prescribed in DAO 96-37 on appeals from the decision of the DENR Executive Director. Petitionersvigorously insist that NAPOCOR should comply with the requirements of consultation and locational clearance prescribed in DAO 96-37. Ironically,petitioners themselves refuse to abide with the procedure for filing complaints and appealing decisions laid down in DAO 96-37.

DAO 96-37 provides for a separate administrative proceeding to address complaints for the cancellation of an ECC. Under Article IX of DAO 96-37,complaints to nullify an ECC must undergo an administrative investigation, after which the hearing officer will submit his report to the EMB Director orthe Regional Executive Director, who will then render his decision. The aggrieved party may file an appeal to the DENR Secretary, who has authority toissue cease and desist orders. Article IX also classifies the types of violations covered under DAO 96-37, including projects operating without an ECC orviolating the conditions of the ECC. This is the applicable procedure to address petitioners' complaint on NAPOCOR's alleged violations and not thefiling of the instant case in court.

A Final Word

The Court commends petitioners for their courageous efforts to safeguard and maintain the ecological balance of Minolo Cove. This Court recognizesthe utmost importance of protecting the environment.33 Indeed, we have called for the vigorous prosecution of violators of environmental laws.34 Legalactions to achieve this end, however, must be done in accordance with established rules of procedure that were intended, in the first place, to achieveorderly and efficient administration of justice.

WHEREFORE, we DENY the petition for lack of merit.

SO ORDERED.

BORACAY FOUNDATION, INC., Petitioner,vs.THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE RECLAMATION AUTHORITY,AND THE DENR-EMB (REGION VI), Respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share common goals in pursuit of certain primordial Statepolicies and principles that are enshrined in the Constitution and pertinent laws, such as the protection of the environment, the empowerment of thelocal government units, the promotion of tourism, and the encouragement of the participation of the private sector. The Court seeks to reconcile therespective roles, duties and responsibilities of the petitioner and respondents in achieving these shared goals within the context of our Constitution,laws and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus under A.M. No. 09-6-8-SC,otherwise known as the Rules of Procedure for Environmental Cases, promulgated on April 29, 2010.

7/27/2019 Envi Law 2

8/23

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary purpose is "to foster a united, concertedand environment-conscious development of Boracay Island, thereby preserving and maintaining its culture, natural beauty and ecological balance,marking the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole world."1It counts among its members atleast sixty (60) owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five community organizations; and severalenvironmentally-conscious residents and advocates.2

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created pursuant to Republic Act No. 1414,represented by Honorable Carlito S. Marquez, the Provincial Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority (PEA), is a government entity created byPresidential Decree No. 1084,3which states that one of the purposes for which respondent PRA was created was to reclaim land, including foreshore andsubmerged areas. PEA eventually became the lead agency primarily responsible for all reclamation projects in the country under Executive Order No.525, series of 1979. In June 2006, the President of the Philippines issued Executive Order No. 543, delegating the power "to approve reclamation projectsto PRA through its governing Board, subject to compliance with existing laws and rules and further subject to the condition that reclamation contracts tobe executed with any person or entity (must) go through public bidding."4

Respondent Department of Environment and Natural Resources Environmental Management Bureau (DENR-EMB), Regional Office VI (respondentDENR-EMB RVI), is the government agency in the Western Visayas Region authorized to issue environmental compliance certificates regarding projectsthat require the environments protection and management in the region.5

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one of the countrys most popular touristdestinations, was declared a tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801.6The island comprises the barangays ofManoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.7

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique ecosystem dynamics of the area. The islanditself is known to come from the uplifted remnants of an ancient reef platform. Its beaches, the sandy land strip between the water and the area currentlyoccupied by numerous establishments, is the primary draw for domestic and international tourists for its color, texture and other unique characteristics.Needless to state, it is the premier domestic and international tourist destination in the Philippines.8

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay Caticlan to be the main gateway toBoracay. It also built the corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Provinceoperates both ports "to provide structural facilities suited for locals, tourists and guests and to provide safety and security measures."9

In 2005, Boracay 2010 Summit was held and participated in by representatives from national government agencies, local government units (LGUs), andthe private sector. Petitioner was one of the organizers and participants thereto. The Summit aimed "to re-establish a common vision of all stakeholdersto ensure the conservation, restoration, and preservation of Boracay Island" and "to develop an action plan that [would allow] all sectors to work inconcert among and with each other for the long term benefit and sustainability of the island and the community."10The Summit yielded a TerminalReport11stating that the participants had shared their dream of having world-class land, water and air infrastructure, as well as given their observationsthat government support was lacking, infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The Reportshowed that there was a need to expand the port facilities at Caticlan due to congestion in the holding area of the existing port, caused by inadequatefacilities, thus tourists suffered long queues while waiting for the boat ride going to the island.12

Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and 779,666 in 2010, and this was expected to reacha record of 1 million tourist arrivals in the years to come. Thus, respondent Province conceptualized the expansion of the port facilities at BarangayCaticlan.13

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814

on April 25, 2008 stating that it had learned thatrespondent Province had filed an application with the DENR for a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting itsstrong opposition to said application, as the proposed foreshore lease practically covered almost all the coastlines of said barangay, thereby technicallydiminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory right of preference in the development andutilization of the natural resources within its jurisdiction. The resolution further stated that respondent Province did not conduct any consultations withthe Sangguniang Barangay of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith on thepart of respondent Province.15

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-369,16formally authorizing GovernorMarquez to enter into negotiations towards the possibility of effecting self-liquidating and income-producing development and livelihood projects to befinanced through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the Local Government Code,with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b)reclamation of a portion of Caticlan foreshore for commercial purposes.17This step was taken as respondent Provinces existing jetty port and passengerterminal was funded through bond flotation, which was successfully redeemed and paid ahead of the target date. This was allegedly cited as one of theLGUs Best Practices wherein respondent Province was given the appropriate commendation.18

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009 Annual Investment Plan,19envisioned as itsproject site the area adjacent to the existing jetty port, and identified additional areas along the coastline of Barangay Caticlan as the site for futureproject expansion.20

Governor Marquez sent a letter to respondent PRA on March 12, 200921expressing the interest of respondent Province to reclaim about 2.64 hectares ofland along the foreshores of Barangay Caticlan, Municipality of Malay, Province of Aklan.

Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant that won in the bidding process held amonth before, to conduct the necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the Cat iclan Passenger TerminalBuilding and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (theMarina Project), in Malay, Aklan.22

http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt1http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt1http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt1http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt2http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt2http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt2http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt3http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt3http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt3http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt4http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt4http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt4http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt5http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt5http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt5http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt6http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt6http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt6http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt7http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt7http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt7http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt8http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt8http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt8http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt9http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt9http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt9http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt10http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt10http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt10http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt11http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt11http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt11http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt12http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt12http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt12http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt13http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt13http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt13http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt14http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt14http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt14http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt15http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt15http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt15http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt16http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt16http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt16http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt17http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt17http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt17http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt18http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt18http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt18http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt19http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt19http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt19http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt20http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt20http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt20http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt21http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt21http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt21http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt22http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt22http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt22http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt22http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt21http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt20http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt19http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt18http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt17http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt16http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt15http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt14http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt13http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt12http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt11http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt10http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt9http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt8http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt7http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt6http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt5http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt4http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt3http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt2http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt1

7/27/2019 Envi Law 2

9/23

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No. 2009110,23which authorized GovernorMarquez to file an application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the land reclamation of 2.64 hectares byway of beach enhancement and recovery of the old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its futureplans the construction of commercial building and wellness center. The financial component of the said study was Two Hundred Sixty Million Pesos(P260,000,000.00). Its suggested financing scheme was bond flotation.24

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended foreshore lease application, throughResolution No. 044,25approved on July 22, 2009, manifesting therein that respondent Provinces foreshore lease application was for business enterprise

purposes for its benefit, at the expense of the local government of Malay, which by statutory provisions was the rightful entity "to develop, utilize andreap benefits from the natural resources found within its jurisdiction."26

In August 2009, a Preliminary Geohazard Assessment27for the enhancement/expansion of the existing Caticlan Jetty Port and Passenger Terminalthrough beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program (EPRMP)28to DENR-EMB RVI, which he hadattached to his letter29dated September 19, 2009, as an initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby assures your good office that it will give preferentialattention to and shall comply with whatever comments that you may have on this EPRMP.30(Emphasis added.)

Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of funding the renovation of the Caticlan Jetty Portand Passenger Terminal Building, and the reclamation of a portion of the foreshore lease area for commercial purposes in Malay, Aklan through

Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor Marquez to negotiate, sign and executeagreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not exceedingP260,000,000.00.31

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-01532on October 1, 2009, amendingProvincial Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the Marina Project andappropriate the entire proceeds of said bonds for the project, and further authorizing Governor Marquez to negotiate, sign and execute contracts oragreements pertinent to the transaction.33

Within the same month of October 2009, respondent Province deliberated on the possible expansion from its original proposed reclamation area of 2.64hectares to forty (40) hectares in order to maximize the utilization of its resources and as a response to the findings of the Preliminary GeohazardAssessment study which showed that the recession and retreat of the shoreline caused by coastal erosion and scouring should be the first major concernin the project site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone within the proposed project site and thenearby coastal area due to the effects of sea level rise and climate change which will greatly affect the social, economic, and environmental situation ofCaticlan and nearby Malay coastal communities.34

In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our request to PRA for approval of thereclamation of the [proposed Beach Zone Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result ofour discussion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully submit a revised Reclamation ProjectDescription embodying certain revisions/changes in the size and location of the areas to be reclaimed. x x x.

On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local Government Unit Guarantee Corporation(LGUGC) has been finally approved last October 14, 2009. This will pave the way for the implementation of said project. Briefly, the Province has beenrecognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan obligations. x x x.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such development project with the end inview of protection and/or restoring certain segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as

reported by experts, has been experiencing tremendous coastal erosion.

For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and tourism-related facilities and for othercomplementary uses.35(Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-29936authorizing Governor Marquez to enter into aMemorandum of Agreement (MOA) with respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina DevelopmentProject, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and Barangay Manoc-manoc. TheSangguniang Panlalawigan approved the terms and conditions of the necessary agreements for the implementation of the bond flotation of respondentProvince to fund the renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of the Old Caticlan shoreline throughreclamation of an area of 2.64 hectares in the amount of P260,000,000.00 on December 1, 2009.37

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of Malay38on December 9, 2009.

Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized its General Manager/Chief ExecutiveOfficer (CEO) to enter into a MOA with respondent Province for the implementation of the reclamation project.39

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation Project tothe extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port.40

On May 17, 2010, respondent Province entered into a MOA41with respondent PRA. Under Article III, the Project was described therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the reclamation and development of approximatelyforty (40) hectares of foreshore and offshore areas of the Municipality of Malay x x x.

http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt23http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt23http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt23http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt24http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt24http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt24http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt25http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt25http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt25http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt26http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt26http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt26http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt27http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt27http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt27http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt28http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt28http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt28http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt29http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt29http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt29http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt30http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt30http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt30http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt31http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt31http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt31http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt32http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt32http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt32http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt33http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt33http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt33http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt34http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt34http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt34http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt35http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt35http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt35http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt36http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt36http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt36http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt37http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt37http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt37http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt38http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt38http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt38http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt39http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt39http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt39http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt40http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt40http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt40http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt41http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt41http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt41http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt40http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt39http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt38http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt37http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt36http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt35http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt34http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt33http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt32http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt31http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt30http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt29http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt28http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt27http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt26http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt25http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt24http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt23

7/27/2019 Envi Law 2

10/23

The land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable uses.42(Emphasessupplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of what it calls "information-education campaigns," whichprovided the venue for interaction and dialogue with the public, particularly the Barangay and Municipal officials of the Municipality of Malay, theresidents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of the campaign aresummarized as follows43:

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44

b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45

c. July 31, 2010 at Barangay Caticlan Plaza;46

d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay Mayor John P. Yap;47

e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council Executive Committee;48and

f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.49

Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on June 17, 2010, respondent Province presentedthe Reclamation Project and only then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds;the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the reclamation project;

and the expansion of the project to forty (40) hectares from 2.64 hectares.50

In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong opposition to respondent Provinces projectand denied its request for a favorable endorsement of the Marina Project.51

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to request respondent PRA "not to grantreclamation permit and notice to proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan."52

In a letter53dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation project, primarily for the reason that, basedon the opinion of Dr. Porfirio M. Alio, an expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered based onthe documents submitted by respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood ofrendering critical and lasting effect on Boracay considering the proximity in distance, geographical location, current and wind direction, and many otherenvironmental considerations in the area. Petitioner noted that said documents had failed to deal with coastal erosion concerns in Boracay. It also notedthat respondent Province failed to comply with certain mandatory provisions of the Local Government Code, particularly, those requiring the projectproponent to conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the reclamation project to respondent Province,respondent PRA, respondent DENR-EMB, the National Economic Development Authority Region VI, the Malay Municipality, and other concernedentities.54

Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for a favorable endorsement, as well as the strongopposition manifested both by Barangay Caticlan and petitioner as an NGO, respondent Province still continued with the implementation of theReclamation Project.55

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010, of the Municipality of Malay andmanifested its support for the implementation of the aforesaid project through its Resolution No. 2010-022.56

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130. Respondent PRA wrote to respondent

Province on October 19, 2010, informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its proposed project.Respondent PRA attached to said letter its Evaluation Report dated October 18, 2010.57

Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized respondent Province to proceed with phase 1 ofthe reclamation project, subject to compliance with the requirements of its Evaluation Report. The reclamation project was described as:

"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in two (2) separate sites both in MalayMunicipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a totalarea of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58(Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59addressed the apprehensions of petitioner embodied in its Resolution No.001, s. 2010, and supported the implementation of the project. Said resolution stated that the apprehensions of petitioner with regard to the economic,social and political negative impacts of the projects were mere perceptions and generalities and were not anchored on definite scientific, social andpolitical studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded by the Departmentof Tourism (DOT) with the assistance of, among others, petitioner. The study was conducted in November 2010 by several marine biologists/expertsfrom the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to determine the potential impact of areclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of Boracay Island and along the coast ofCaticlan.60

After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of petitioner, respondent Province issued a noticeto the contractor on December 1, 2010 to commence with the construction of the project.61

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food, Agriculture, and Environmental Protectionand the Committee on Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI was discussed.62In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the Provincial Government, and Dr.

http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt42http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt42http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt42http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt43http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt43http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt43http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt44http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt44http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt44http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt45http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt45http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt45http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt46http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt46http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt46http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt47http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt47http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt47http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt48http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt48http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt48http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt49http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt49http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt49http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt50http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt50http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt50http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt51http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt51http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt51http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt52http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt52http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt52http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt53http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt53http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt53http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt54http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt54http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt54http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt55http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt55http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt55http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt58http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt58http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt58http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt59http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt59http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt59http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt60http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt60http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt60http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt61http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt61http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt61http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt62http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt62http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt62http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt62http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt61http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt60http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt59http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt58http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt57http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt56http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt55http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt54http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt53http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt52http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt51http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt50http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt49http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt48http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt47http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt46http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt45http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt44http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt43http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt42

7/27/2019 Envi Law 2

11/23

Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64 hectares, would only have insignificant effect onthe hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility that it would affect theBoracay coastline, which includes the famous white-sand beach of the island.63

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-06564noting the report on the survey of the channelbetween Caticlan and Boracay conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr.Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse effect on the white-sand beach of Boracay.

During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April 16, 2011, it approved and supported thesubject project (covering 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.65

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study conducted by the UPMSI confirms that thewater flow across the Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project ofrespondent Province would not significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-Boracaystated that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental grounds.66

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011,this Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition.67

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the Provincial Engineering Office and theconcerned contractor to cease and desist from conducting any construction activities until further orders from this Court.

The petition is premised on the following grounds:

I.

The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and regulations in the acquisition of an ECC.

A. The reclamation project is co-located within environmentally critical areas requiring the performance of a full, or programmatic,environmental impact assessment.

B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.

C. Respondent Province failed to conduct the required consultation procedures as required by the Local Government Code.

D. Respondent Province failed to perform a full environmental impact assessment as required by law and relevant regulations.

II.

The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail ecological balance of the area.68

Petitioner objects to respondent Provinces classification of the reclamation project as single instead of co -located, as "non-environmentally critical," andas a mere "rehabilitation" of the existing jetty port. Petitioner points out that the reclamation project is on two sites (which are situated on the oppositesides of Tabon Strait, about 1,200 meters apart):

36.82 hectares Site 1, in Bgy. Caticlan 3.18 hectares Site 2, in Manoc-manoc, Boracay Island69

Phase 1, which was started in December 2010 without the necessary permits,70is located on the Caticlan side of a narrow strait separating mainlandAklan from Boracay. In the implementation of the project, respondent Province obtained only an ECC to conduct Phase 1, i nstead of an ECC on the

entire 40 hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised Procedural Manual for DENR AdministrativeOrder No. 30, Series of 2003 (DENR DAO 2003-30)71relating to the acquisition of an ECC by:

1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project) in ECA (environmentally criticalarea) based on the type and size of the area," and

2. Failing to declare the reclamation project as a co-located project application which would have required the Province to submit aProgrammatic Environmental Impact Statement (PEIS)72or Programmatic Environmental [Performance] Report Management Plan(PE[P]RMP).73(Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which merely requires an EnvironmentalImpact Statement [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because thelaws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146, clearly indicate that projects inenvironmentally critical areas are to be immediately considered environmentally critical. Petitioner complains that respondent Province applied for an

ECC only for Phase 1; hence, unlawfully

evading the requirement that co-located projects74within Environmentally Critical Areas (ECAs) must submit a PEIS and/or a PEPRMP.

Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP in an ECA, and as a single projectinstead of a co-located one. The impact assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of the possibleenvironmental impact of the reclamation project. Petitioner contends that respondent Provinces choice of classification was designed to avoid acomprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to ensure that the environment is protectedfrom harmful developmental projects because it allegedly performed only a cursory and superficial review of the documents submitted by therespondent Province for an ECC, failing to note that all the information and data used by respondent Province in its application for the ECC were alldated and not current, as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent

http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt63http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt63http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt63http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt64http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt64http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt64http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt65http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt65http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt65http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt66http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt66http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt66http://www.lawphil.net/judjuris/juri2012/jun2012/gr_196870_2012.html#fnt67http://www.lawphil.net/judjuris/juri2012/jun2012/g