Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 207257 February 3, 2015
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC., Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN AUTHORITY, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 207366
SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, HON. ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELHPERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO PENINSULA ENERGY, INC., Respondents.
D E C I S I O N
DEL CASTILLO, J.:
Before this Court are consolidated Petitions for Review on Certiorari1 assailing the Decision2 dated January 30, 2013 and the Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P. Paje, et al."
Factual Antecedents
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government agency organized and established under Republic Act No. (RA) 7227,4 and Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of Understanding (MOU) expressing their intention to build a power plant in Subic Bay which would supply reliable and affordable power to Subic Bay Industrial Park (SBIP).5
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build and operatea coal-fired power plant.6 In the said MOU, TCC identified 20 hectares of land at SitioNaglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the suitable area for the project and another site of approximately 10 hectares tobe used as an ash pond.7 TCC intends to lease the property from SBMA for a term of 50 years with rent fixed at$3.50 per square meter, payable in 10 equal 5-year installments.8
On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of TCC,9 for the construction, installation,and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore.10
On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy),11 a corporation duly organized and existing under the laws of the Philippines with the primary purpose of building, owning, and operating powerplants in the Philippines, among others.12 Accordingly, an Addendum to the said MOU was executed by SBMA and RP Energy.13
RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for the proposed coal-fired power plant and to assist RP Energy in applying for the issuance ofan ECC from the Department of Environment and Natural Resources (DENR).14 On August 27, 2008, the Sangguniang Panglungsodof Olongapo City issued Resolution No. 131, Series of 2008, expressing the city government’s objection to the coal-fired power plant as an energy source and urging the proponent to consider safer alternative sources ofenergy for Subic Bay.15
On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-fired power plant.16
Sometime thereafter, RP Energy decided to include additional components in its proposed coal-fired power plant. Due to the changes in the project design, which involved the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement, and a 230kV double-circuit transmission line,17 RP Energy requested the DENR Environmental Management Bureau(DENR-EMB) to amend its ECC.18 In support of its request, RP Energy submitted to the DENR-EMBan Environmental Performance Report and Management Plan (EPRMP), which was prepared by GHD.19
On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement (LDA) over a 380,004.456-square meter parcel of land to be used for building and operating the coal-fired power plant.20
On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) allowing the inclusion ofadditional components, among others.21
Several months later, RP Energy again requested the DENR-EMB to amend the ECC.22 Instead of constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought toconstruct a 1x300-MWcoal-fired power plant.23 In support of its request, RP Energy submitted a Project Description Report (PDR) to the DENR-EMB.24
On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second amendment).25
On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued Resolution No. 2011-149, opposing the establishment of a coal-fired thermal power plant at SitioNaglatore, Brgy. Cawag, Subic, Zambales.26
On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued Resolution No. 12, Series of 2011, expressing its strong objection to the coal-fired power plant as an energy source.27
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ of Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as Secretary of the DENR.28
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan; and (2) refer the case to the CA for hearing and reception of evidence and rendition of judgment.29 While the case was pending, RP Energy applied for another amendment to its ECC (third amendment) and submitted another EPRMP to the DENR-EMB, proposing the construction and operation of a 2x300-MW coal-fired power plant.30
On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as CA-G.R. SP No. 00015 and raffled to the Fifteenth Division of the CA.31 In the Petition, the Casiño Group alleged, among others, that the power plant project would cause grave environmental damage;32 that it would adversely affect the health of the residents of the municipalities of Subic,Zambales, Morong, Hermosa, and the City of Olongapo;33 that the ECC was issued and the LDA entered into without the prior approval of the concerned sanggunians as required under Sections 26 and 27 of the Local Government Code (LGC);34 that the LDA was entered into without securing a prior certification from the National Commission on Indigenous Peoples (NCIP) as required under Section 59 of RA8371 or the Indigenous Peoples’ Rights Act of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which allowsamendments of ECCs is ultra viresbecause the DENR has no authority to decide on requests for amendments of previously issued ECCs in the absence of a new EIS;36 and that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null and void.37
On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their respective counsels, appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo,Evangeline Q. Rodriguez, and the SBMA.38 The matters taken up during the preliminary conference were embodied in the CA’s Resolution dated November 5, 2012, to wit:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x ) and its amendment to 1x300 MW Power Plant, and the Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as required under Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without prior consultation with and approval of the concerned local government units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the Local Government Code;
3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x x ) providing for the amendment of an ECC is null and void for being ultra vires; and
4. Whether x x x the amendment of RPEnergy’s ECC under Section 8.3 of DAO No. 2003-30 is null and void.
B. Respondent RP Energy
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;
1.1 Whether x x x the same is valid until annulled;
2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300 MW Power Plant;
2.1 Whether x x x the instant Petition is proper;
3. Whether x x x RP Energycomplied with all the procedures/requirements for the issuance of the DENR ECC and its amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the instant case;
4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is necessaryfor the issuance of the DENR ECC and its amendments, and what constitutes LGU approval;
5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of properverification and certification of nonforum shopping with respect to some petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;
2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
II. ADMISSIONS/DENIALS
Petitioners, through Atty. Ridon, admittedall the allegations in RP Energy’s Verified Return, except the following:
1. paragraphs 1.4 to 1.7;
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37.
Petitioners made no specific denial withrespect to the allegations of DENR Secretary Paje’s Verified Return. x x x
Respondent RP Energy proposed the following stipulations, which were all admitted by petitioners, through Atty. Ridon, viz:
1. The 1x300 MW Power Plant is not yet operational;
2. At present, there is no environmental damage;
3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone; and
4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of DAO No. 2003-30.
Public respondent DENR Secretary Paje did not propose any matter for stipulation.39
Thereafter, trial ensued.
The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term representativeof the KabataanPartylist in the House of Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales-Olongapo City Civil Society Network,a director of the PREDA41 Foundation, and a member of the Zambales Chapter of the Kaya NatinMovement and the Zambales Chapter of the People Power Volunteers for Reform;42 and (3) Ramon Lacbain, the ViceGovernor of the Province of Zambales.43
RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. Mercado), an employee of GHD and the Project Directorof ongoing projects for RP Energy regarding the proposed power plant project;44 (2) Juha Sarkki (Engr. Sarkki), a Master of Science degree holder inChemical Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of Science Major in Mechanical Engineering from Worcester Polytechnic Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer, and Environmental Planner in the Philippines;47 and (5) David C. Evangelista (Mr. Evangelista), a Business Development Analyst working for RP Energy.48
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty. Rodriguez).49
The DENR, however, presented no evidence.50
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection with RP Energy’s application for the 2x300-MW coal-fired power plant.51
On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third amendment to its ECC, approving the construction and operation of a 2x300-MW coal-fired power plant, among others.52
Ruling of the Court of Appeals
On January 30, 2013, the CA rendereda Decision denying the privilege of the writ of kalikasanand the application for an environment protection order due to the failure of the Casiño Group to prove that its constitutional right to a balanced and healthful ecology was violated or threatened.53 The CA likewise found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said that the provision was not ultra vires,as the express power of the Secretary of the DENR, the Director and Regional Directors of the EMB to issue an ECC impliedly includes the incidental power to amend the same.54 In any case, the CA ruled that the validity of the said section could not becollaterally attacked in a petition for a writ of kalikasan.55
Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-compliance with Section 59 of the IPRA Law56 and Sections 26 and 27 of the LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix his signature in the Sworn Statement of Full Responsibility, which is an integral part of the ECC.58 Also declared invalid were the ECC first amendment dated July 8, 2010 and the ECC second amendment dated May 26, 2011 in view of the failure of RP Energy to comply with the restrictions set forth in the ECC, which specifically require that "any expansion of the project beyond the project description or any change in the activity x x x shall be subject to a new Environmental Impact Assessment."59 However, as to the ECC third amendment dated November 15, 2012, the CA decided not to rule on its validity since it was not raised as an issue during the preliminary conference.60
The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior consultation and approval of all the sanggunians concerned as required under Sections 26 and 27 of the LGC,61 and in violation of Section 59, Chapter VIII ofthe IPRA Law, which enjoins all departments and other governmental agencies from granting any lease without a prior certification that the area affected does not overlap with any ancestral domain.62 The CA noted that no CNO was secured from the NCIP prior to the execution of the LDA,63 and that the CNO dated October 31, 2012 was secured during the pendency of the case and was issued in connection with RP Energy’s application for a 2x300-MW coalfired power plant.64
Thus, the CA disposed of the case in this wise:
WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of the writ of kalikasan and the application for an environmental protection order. The prayer to declare the nullity of Section 8.3 of the DENR Administrative Order No. 2003-30 for being ultra vires is DENIED; and the following are all declared INVALID:
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22 December 2008 issued in favor of respondent Redondo Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr. of the Department of Environment and Natural Resources;
2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May 2011, both issued in favor ofrespondent Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T. Cunaof the Department of Environment and Natural Resources, Environmental Management Bureau; and
3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc. involving a parcel of land consisting of ₱380,004.456 square meters.
SO ORDERED.65
The DENR and SBMA separately moved for reconsideration.66 RP Energy filed a Motion for Partial Reconsideration,67 attaching thereto a signed Statement of Accountability.68 The Casiño Group, on the other hand, filed Omnibus Motions for Clarification and Reconsideration.69
On May 22, 2013, the CAissued a Resolution70 denying the aforesaid motions for lack of merit. The CA opined that the reliefs it granted in its Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for Environmental Cases as the reliefs enumerated therein are broad, comprehensive, and nonexclusive.71 In fact, paragraph (e) of the saidprovision allows the granting of "such other reliefs" in consonance with the objective, purpose, and intent of the Rules.72 SBMA’s contention that the stoppage of a project for non-compliance with Section 59 of the IPRA Law may only be done by the indigenous cultural communities or indigenous peoples was also brushed aside by the CA as the Casiño Group did not file a case under the IPRA Law but a Petition for a Writ of Kalikasan, which is available to all natural or juridical persons whose constitutional right to a balanced and healthful ecology is violated, or threatened to be violated.73 As to RP Energy’s belated submission of a signed Statement of Accountability, the CA gaveno weight and credenceto it as the belated submission of such document, long after the presentation of evidence of the parties had been terminated, is not in accord with the rules of fair play.74 Neither was the CA swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a mere formal defect, which does not affect the validity of the entire document.75 The dispositive portion of the Resolution reads: WHEREFORE,premises considered, respondents Subic Bay Metropolitan Authority’s Motion for Reconsideration dated 18 February 2013, Department of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s Motion for Reconsideration dated 19 February 2013, and Redondo Peninsula Energy, Inc.’s Motion for Partial Reconsideration dated 22 February 2013, as well as petitioners’ OmnibusMotions for Clarification and Reconsideration dated 25 February 2013,are all DENIED for lack of merit.
SO ORDERED.76
Unsatisfied, the parties appealed to this Court.
The Casiño Group’s arguments
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as it was able to prove that the operation of the power plant would cause environmental damage and pollution, and that thiswould adversely affect the residents of the provinces of Bataan and Zambales, particularly the municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites as basis RP Energy’s EIS, which allegedly admits that acid rain may occur in the combustion of coal;77 that the incidence of asthma attacks among residents in the vicinity of the project site may increasedue to exposure to suspended particles from plant operations;78 and that increased sulfur oxides (SOx) and nitrogen oxides (NOx) emissions may occur during plant operations.79 It also claims that when the SBMA conducted Social Acceptability Policy Consultations with different stakeholders on the proposed power plant, the results indicated that the overall persuasion of the participants was a clear aversion to the project due to environmental, health, economic and socio-cultural concerns.80 Finally, it contends that the ECC third amendment should also be nullified for failure to comply with the procedures and requirements for the issuance of the ECC.81
The DENR’s arguments
The DENR imputes error on the CAin invalidating the ECC and its amendments, arguing that the determination of the validity of the ECC as well as its amendments is beyond the scope of a Petition for a Writ of Kalikasan.82 And even if it is within the scope, there is no reason to invalidate the ECC and its amendments as these were issued in accordance with DAO No. 2003-30.83 The DENR also insists that contrary to the view of the CA, a new EIS was no longer necessary since the first EIS was still within the validity period when the first amendment was requested, and that this is precisely the reason RP Energy was only required to submit an EPRMP in support of its application for the first amendment.84 As to the second amendment, the DENR-EMB only required RP Energy to submit documents to support the proposed revision considering that the change in configuration of the power plant project, from 2x150MW to 1x300MW, was not substantial.85 Furthermore, the DENR argues that no permits, licenses, and/or clearances from other government agencies are required in the processing and approval of the ECC.86 Thus, non-compliance with Sections 26 and 27 of the LGC as well as Section 59 ofthe IPRA Law is not a ground to invalidate the ECC and its amendments.87 The DENR further posits that the ECC is not a concession, permit, or license but is a document certifying that the proponent has complied with all the requirements of the EIS System and has committed to implement the approved Environmental Management Plan.88 The DENR invokes substantial justice so that the belatedly submitted certified true copy of the ECC containing the signature of Mr. Aboitiz on the Statement of Accountability may be accepted and accorded weight and credence.89
SBMA’s arguments
For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it should not have invalidated the LDA and that in doing so, the CA acted beyond its powers.90 SBMA likewise puts in issue the legal capacity of the Casiño Group to impugn the validity of the LDA91 and its failure to exhaust administrative remedies.92 In any case, SBMA contends that there is no legal basis to invalidate the LDA as prior consultation under Sections 26 and 27 of the LGC is not required in this case considering that the area is within the SBFZ.93 Under RA 7227, it is the SBMA which has exclusive jurisdiction over projects and leases within the SBFZ and that in case of conflict between the LGC and RA 7227, it is the latter, a special law, which must prevail.94 Moreover, the lack of prior certification from the NCIP is alsonot a ground to invalidate a contract.95 If at all, the only effect of non-compliance with the said requirement under Section 59 of the IPRA Law is the stoppage or suspension of the project.96 Besides, the subsequent issuance of a CNO has cured any legal defect found in the LDA.97
RP Energy’s arguments
RP Energy questions the proprietyof the reliefs granted by the CA considering that it did not issue a writ of kalikasanin favor of the Casiño Group.98 RP Energy is of the view that unless a writ of kalikasanis issued, the CA has no power to grant the reliefs prayed for in the Petition.99 And even if it does, the reliefs are limited to those enumerated in Section 15, Rule 7 of the Rules of Procedure for Environmental Cases and that the phrase "such other reliefs" in paragraph (e) should be limited only to those of the same class or general nature as the four other reliefs enumerated.100 As to the validity of the LDA, the ECC and its amendments, the arguments of RP Energy are basically the same arguments interposed by SBMA and the DENR. RP Energy maintains that the ECC and its amendments were obtained in compliance with the DENR rules and regulations;101 that a CNO is not necessary in the execution of anLDA and in the issuance of the ECC and its amendments;102 and that prior approval of the local governments, which may be affected by the project, are not required because under RA 7227, the decision of the SBMA shall prevail in matters affecting the Subic Special Economic Zone (SSEZ), except in matters involving defense and security.103 RP Energy also raises the issue of non-exhaustion of administrative remedies on the part of the Casiño Group.104 Preliminaries
This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan. It presents some interesting questions about law and justice in the context of environmental cases, which we will tackle in the main body of this Decision.
But we shall first address some preliminary matters, in view of the manner by which the appellate court disposed of this case.
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for Environmental Cases,106 was issued by the Court pursuant to its power to promulgate rules for the protection and enforcement of constitutional rights,107 in particular, the individual’s rightto a balanced and healthful ecology.108 Section 1 of Rule 7 provides:
Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
The writ is categorized as a special civil action and was, thus, conceptualized as an extraordinary remedy,which aims to provide judicial relief from threatened or actual violation/s of the constitutional right to a balanced and healthful ecology of a magnitude or degree of damage that transcends political and territorial boundaries.109 It is intended "to provide a strongerdefense for environmental rights through judicial efforts where institutional arrangements of enforcement, implementation and legislation have fallen short"110 and seeks "to address the potentially exponential nature of large-scale ecological threats."111
Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy: (1) there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property ofinhabitants in two or more cities or provinces.
Expectedly, the Rules do not definethe exact nature or degree of environmental damage but only that it must be sufficientlygrave, in terms of the territorial scope of such damage, so as tocall for the grant ofthis extraordinary remedy. The gravity ofenvironmental damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis.
If the petitioner successfully proves the foregoing requisites, the court shall render judgment granting the privilege of the writ of kalikasan. Otherwise, the petition shall be denied. If the petition is granted, the court may grant the reliefs provided for under Section 15of Rule 7, to wit: Section 15. Judgment.- Within sixty (60) daysfrom the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.
It must be noted, however,that the above enumerated reliefs are non-exhaustive. The reliefs that may be granted under the writ are broad, comprehensive and non-exclusive.112
Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs granted by the appellate court, i.e.invalidating the ECC and its amendments, are improper because it had deniedthe Petition for Writ of Kalikasanupon a finding that the Casiño Group failed to prove the alleged environmental damage, actual or threatened, contemplated under the Rules.
Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the appellate court have granted the Petition for Writ of Kalikasanon the ground of the invalidity of the ECC for failure to comply with certain laws and rules?
This question is the starting point for setting up the framework of analysis which should govern writ of kalikasan cases.
In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations, relative to the actual or threatened violation of the constitutional right to a balanced and healthful ecology, may be grouped into two.
The first set of allegations deals withthe actual environmental damage that will occur if the power plant project isimplemented. The Casiño Group claims that the construction and operation of the power plant will result in (1) thermal pollution of coastal waters, (2) air pollution due to dust and combustion gases, (3) water pollution from toxic coal combustion waste, and (4) acid deposition in aquatic and terrestrial ecosystems, which will adversely affect the residents of the Provinces of Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.
The second set of allegations deals with the failureto comply with certain laws and rules governing or relating to the issuance ofan ECC and amendments thereto. The Casiño Group claims that the ECC was issued in violation of (1) the DENR rules on the issuance and amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual for DAO 2003-30 (Revised Manual), (2) Section 59 of the IPRA Law,and (3) Sections 26 and 27 of the LGC. In addition, it claims that the LDA entered into between SBMA and RP Energy violated Section 59 of the IPRA Law.
As to the first set of allegations, involving actual damage to the environment, it is not difficult to discern that, if they are proven, then the Petition for Writ of Kalikasan could conceivably be granted.
However, as to the second set of allegations, a nuanced approach is warranted. The power of the courts to nullify an ECC existed even prior to the promulgation of the Rules on the Writ of Kalikasanfor judicial review of the acts of administrative agencies or bodies has long been recognized114 subject, of course, to the doctrine of exhaustion of administrative remedies.115
But the issue presented before us is nota simple case of reviewing the acts of an administrative agency, the DENR, which issued the ECC and its amendments. The challenge to the validity ofthe ECC was raised in the context of a writ of kalikasancase. The question then is, can the validity of an ECC be challenged viaa writ of kalikasan?
We answer in the affirmative subject to certain qualifications.
As earlier noted, the writ of kalikasanis principally predicated on an actual or threatened violation of the constitutional right to a balanced and healthful ecology, which involves environmental damage of a magnitude that transcends political and territorial boundaries. A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must not only allege and prove such defects or irregularities, but mustalso provide a causal link or, at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. This must be so ifwe are to preserve the noble and laudable purposes of the writ against those who seek to abuse it.
An example of a defect or an irregularity in the issuance of an ECC, which could conceivably warrant the granting of the extraordinary remedy of the writ of kalikasan, is a case where there are serious and substantial misrepresentations or fraud in the application for the ECC, which, if not immediately nullified, would cause actual negative environmental impacts of the magnitude contemplated under the Rules, because the government agenciesand LGUs, with the final authority to implement the project, may subsequently rely on such substantially defective or fraudulent ECC in approving the implementation of the project.
To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to merely allege such defects or irregularities, but to show a causal link or reasonable connection with the environmental damage of the magnitude contemplated under the Rules. In the case at bar, no such causal link or reasonable connection was shown or even attempted relative to the aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in the issuance of the ECC. This would havebeen sufficient reason to disallow the resolution of such issues in a writ of kalikasan case.
However, inasmuch as this is the first time that we lay down this principle, we have liberally examined the alleged defects or irregularities in the issuance of the ECC and find that there is only one group of allegations, relative to the ECC, that can be reasonably connected to anenvironmental damageof the magnitude contemplated under the Rules. This is withrespect to the allegation that there was no environmental impact assessment relative to the first and second amendments to the subject ECC. If this were true, then the implementation of the project can conceivably actually violate or threaten to violate the right to a healthful and balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of such an issue could conceivably be resolved in a writ of kalikasan case provided that the case does not violate, or is anexception to the doctrine of exhaustion of administrative remedies and primary jurisdiction.116
As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA, likewise, violated the IPRA Law, we find the same not to be within the coverage of the writ of kalikasanbecause, assuming there was non-compliance therewith, no reasonable connection can be made to an actual or threatened violation of the right to a balanced and healthful ecology of the magnitude contemplated under the Rules.
To elaborate, the alleged lackof approval of the concerned sanggunians over the subject project would not lead toor is not reasonably connected with environmental damage but, rather, it is an affront to the local autonomy of LGUs. Similarly, the alleged lack of a certificate precondition that the project site does not overlap with an ancestral domain would not result inor is not reasonably connected with environmental damage but, rather, it is an impairment of the right of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged violationscould be the subject of appropriate remedies before the proper administrative bodies (like the NCIP) or a separate action to compel compliance before the courts, as the case may be. However, the writ of kalikasan would not be the appropriate remedy to address and resolve such issues.
Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those which are not, commingled as it were here, because of the exceptional character of this case. We take judicial notice of the looming power crisis that our nation faces. Thus, the resolution of all the issues in this case is of utmost urgency and necessity in order to finally determine the fate of the project center of this controversy. If we were to resolve only the issues proper in a writ of kalikasancase and dismiss those not proper therefor, that will leave such unresolved issues open to another round of protracted litigation. In any case, we find the records sufficient to resolve all the issues presented herein. We also rule that, due to the extreme urgency of the matter at hand, the present case is an exception to the doctrine of exhaustion of administrative remedies.117 As we have often ruled, in exceptional cases, we can suspend the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State interests vital to the life of our nation.
Issues
In view of the foregoing, we shall resolve the following issues:
1. Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave environmental damage.
1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and combustion gases, water pollution from toxic coal combustion waste, and acid deposition to aquatic and terrestrial ecosystems that will becaused by the project.
1.2. The alleged negative environmental assessment of the project by experts in a report generated during the social acceptability consultations.
1.3. The alleged admissions of grave environmental damage in the EIS itself of the project.
2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz, as representative of RP Energy, in the Statement of Accountability of the ECC.
3. Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact assessment (EIA) because of the utilization of inappropriate EIA documents.
4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the issuanceof an ECC and the lack of its prior issuance rendered the ECC invalid.
5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the consummation of the Lease and Development Agreement (LDA) between SBMA and RPEnergy and the lack of its prior issuance rendered the LDA invalid.
6. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the concerned sanggunianrequirement) is necessary prior to the implementation of the power plant project.
7. Whether the validity of the third amendment to the ECC can be resolved in this case.
Ruling
The parties to this case appealed from the decision of the appellate court pursuant to Section 16, Rule7 of the Rules of Procedure for Environmental Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse judgment or denialof motion for reconsideration, any party may appeal to the Supreme Court under Rule45 of the Rules of Court. The appeal may raise questions of fact. (Emphasis supplied)
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on appeal, questions of fact— and, thus, constitutes an exception to Rule 45 of the Rules of Court— because ofthe extraordinary nature of the circumstances surrounding the issuance of a writ of kalikasan.118 Thus, we shall review both questions of law and fact in resolving the issues presented in this case.
We now rule on the above-mentioned issues in detail.
I.
Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave environmental damage.
The alleged thermal pollution of coastal
waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.
As previously noted, the Casiño Group alleged that the construction and operation of the power plant shall adversely affect the residents of the Provinces of Bataan and Zambales, particularly, the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo, as well as the sensitive ecological balance of the area. Their claims of ecological damage may be summarized as follows:
1. Thermal pollution of coastal waters. Due to the discharge of heated water from the operation of the plant, they claim that the temperature of the affected bodies of water will rise significantly. This will have adverse effects on aquatic organisms. It will also cause the depletion of oxygen in the water. RP Energy claims that there will beno more than a 3°C increase in water temperature but the Casiño Group claims that a 1°C to 2°C rise can already affect the metabolism and other biological functions of aquatic organisms such asmortality rate and reproduction.
2. Air pollution due to dust and combustion gases. While the Casiño Group admits that Circulating Fluidized Bed (CFB) Coal technology, which will be used in the power plant, is a clean technology because it reduces the emission of toxic gases, it claims that volatile organic compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted under the CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. Carbon monoxide, a poisonous gas, and nitrous oxide, a lethal global warming gas, will also be produced.
3. Water pollution from toxic coal combustion waste. The waste from coal combustion or the residues from burning pose serious environmental risk because they are toxic and may cause cancer and birth defects. Their release to nearby bodies of water will be a threatto the marine ecosystem of Subic Bay. The project is located in a flood-prone area and is near three prominent seismic faults as identified by Philippine Institute of Volcanology and Seismology. The construction of an ash pond in an area susceptible to flooding and earthquake also undermines SBMA’s duty to prioritize the preservation of the water quality in Subic Bay.
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 tons of nitrous oxides and 886 tons of sulfur dioxide per year. These oxides are responsible for acid deposition. Acid deposition directly impacts aquatic ecosystems. It is toxic to fish and other aquatic animals. It will also damage the forests near Subic Bay as well as the wildlife therein. This will threaten the stability of the biological diversity of the Subic Bay Freeport which was declared as one of the ten priority sites among the protected areas in the Philippines and the Subic Watershed and Forest Reserve. This will also have an adverse effect on tourism.119
In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to prove the above allegations.
We agree with the appellate court.
Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB technology or on environmental matters. These witnesses even admitted on cross-examination that theyare not competent to testify on the environmental impact of the subject project. What is wanting in their testimonies is their technical knowledgeof the project design/implementation or some other aspects of the project, even those not requiring expertknowledge, vis-à-vis the significant negative environmental impacts which the Casiño Group alleged will occur. Clearly, the Casiño Group failed to carry the onusof proving the alleged significant negative environmental impacts of the project. In comparison, RP Energy presented several experts to refute the allegations of the Casiño Group.
As aptly and extensively discussed by the appellate court:
Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of whom are not experts on the CFB technology or even on environmental matters. Petitioners did not present any witness from Morong or Hermosa. Palatino, a former freelance writer and now a Congressman representing the Kabataan Partylist, with a degree of BS Education major in Social Studies, admitted that he is not a technical expert. Hermoso, a Director of the PREDA foundation which is allegedly involved on environmental concerns, and a member of Greenpeace, is not an expert on the matter subject of this case. He is a graduate of BS Sociology and a practicing business director involved in social development and social welfare services. Lacbain, incumbent ViceGovernor of the Province of Zambales, anaccounting graduate with a Master in Public Administration, was a former BancoFilipino teller, entertainment manager, disco manager, marketing manager and college instructor, and is also not an expert on the CFB technology. Lacbain also admitted that he is neither a scientist nor an expert on matters of the environment.
Petitioners cited various scientific studies or articles and websites culled from the internet. However, the said scientific studiesand articles including the alleged Key Observations and Recommendations on the EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit "DDDDD") attached to the Petition, were not testified to by an expert witness, and are basically hearsay in nature and cannot be given probative weight. The article purportedly written by Rex Victor O. Cruz was not even signed by the said author, which fact was confirmed by Palatino. Petitioners’ witness, Lacbain, admitted that he did not personally conduct any study on the environmental or health effects of a coal-firedpower plant, but only attended seminars and conferences pertaining to climate change; and that the scientific studies mentioned in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA") of the Sangguniang Panlalawiganof Zambales is based on what he read on the internet, seminars he attended and what he heard from unnamed experts in the field of environmental protection.
In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by the concerned residents the Key Observations and Recommendations on the EIS of Proposed RPE Project by Rex Victor O. Cruz, and that he merely received and read the five (5) scientific studies and articles which challenge the CFB technology. Palatino also testified that: he was only furnished by the petitioners copies of the studies mentioned in his Judicial Affidavit and he did not participate in the execution, formulation or preparation of any of the said documents; he does not personally know Rex Cruz or any of the authors of the studies included in his Judicial Affidavit; he did not read other materials about coal-fired power plants; he is not aware of the acceptable standards as far as the operation of a coal-fired power plant is concerned; petitioner Velarmino was the one who furnished him copies of the documents in reference to the MOU and some papers related to the case; petitioner Peralta was the one who e-mailed to him the soft copy ofall the documents [letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and he has never been at the actual Power Plant projectsite. It must be noted that petitioners Velarmino and Peralta were never presented as witnesses in this case. In addition, Palatino did not identify the said studies but simplyconfirmed that the said studies were attached to the Petition.
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his orher personal knowledge, that is, which are derived from the witness’ own perception. Concomitantly, a witness may not testify on matters which he or she merely learned from others either because said witness was told or read or heard those matters. Such testimony is considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay rule. Hearsay is notlimited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements. There are several exceptions to the hearsay rule under the Rules of Court, among which are learned treatises under Section 46 of Rule 130, viz:
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subjectof history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject."
The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises. We cannot take judicial notice of the same, and no witness expert in the subjectmatter of this case testified, that the writers of the said scientific studies are recognized in their profession or calling as experts in the subject.
In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in Mechanical Engineering from Worcester Polytechnic Institute; he is a Consulting Engineer of Steam Generators of URS; he was formerly connected with Foster Wheeler where he held the positions of site commissioning engineer, testing engineer, instrumentation and controls engineer, mechanical equipment department manager, director of boiler performance and mechanical design engineering and pulverized coal product director. He explained that: CFB stands for Circulating Fluidized Bed; it is a process by which fuel is fed to the lower furnace where it is burned in an upward flow of combustion air; limestone, which is used as sulfur absorbent, is also fed to the lower furnace along with the fuel; the mixture offuel, ash, and the boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone separator; the heavier particles which generally consist of the remaining uncombusted fuel and absorbent material are separated in the cyclone separator and are recirculated to the lower furnace to complete the combustion of any unburned particles and to enhance SO2 capture by the sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in the electrostatic precipitator; furnace temperature is maintained in the range of 800° to 900° C by suitable heat absorbing surface; the fuel passes through a crusher that reduces the size to an appropriate size prior to the introduction into the lower furnace along with the limestone; the limestone is used as a SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an inert and stable material; air fans at the bottom of the furnace create sufficient velocity within the steam generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is also introduced above the bed to facilitate circulation and complete combustion of the mixture; the combustion process generates heat, which then heats the boiler feedwater flowing through boiler tube bundles under pressure; the heat generated in the furnace circuit turns the water to saturated steam which is further heated to superheated steam; this superheated steam leaves the CFB boiler and expands through a steam turbine; the steam turbine is directly connected to a generator that turns and creates electricity; after making its way through the steam turbine, the low-pressure steam is exhausted downwards into a condenser; heat is removed from the steam, which cools and condenses into water (condensate); the condensate is then pumped back through a train of feedwater heaters to gradually increase its temperature beforethis water is introduced to the boiler to start the process all over again; and CFB technology has advantagesover pulverized coal firing without backend cleanup systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs have a wider range of flexibility so they can environmentally handle a wider range of fuel constituents, mainly the constituent sulfur; and is capable of handling different types of coal within the range of the different fuelconstituents; since CFB is the newer technology than the PC or stalker fire, it has better environmental production; 50 percent ofthe electric generation in the United States is still produced by coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted; and there will be a lower percentage of emissions than any other technology for the coal.
In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in FosterWheeler; he was a Manager of Process Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of Science degree in Chemical Engineering.He explained that: CFB boilers will emit PAHs but only in minimal amounts, while BFB will produce higher PAH emissions; PAH is a natural product of any combustion process; even ordinary burning, such as cooking or driving automobiles, will have some emissions that are not considered harmful; it is only when emissions are of a significant level that damage may be caused; a CFB technology has minimal PAH emissions; the high combustion efficiency of CFB technology, due to long residence time of particles inside the boiler, leads to minimal emissions of PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production; and CFB does not cause emissions beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB technology is used worldwide; they have a 50% percent share of CFB market worldwide; and this will be the first CFB by Foster Wheeler in the Philippines; Foster Wheeler manufactures and supplies different type[s] of boilers including BFB, but CFB is always applied on burning coal, so they do not apply any BFB for coal firing; CFB has features which have much better combustion efficiency, much lower emissions and it is more effective as a boiler equipment; the longer the coal stays inthe combustion chamber, the better it is burned; eight (8) seconds is already beyond adequate but it keeps a margin; in CFB technology, combustion technology is uniform throughout the combustion chamber; high velocity is used in CFB technology, that is vigorous mixing or turbulence; turbulence is needed to get contact between fuel and combustion air; and an important feature of CFB is air distribution.
In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary Engineer and Environmental Planner in the Philippines; he is also a chartered Professional Engineer inAustralia and a member of the colleges of environmental engineers and chemical engineers of the Institution of Engineers (Australia); he completed his Bachelor in Chemical Engineering in 1970, Master of Environmental Engineering in 1972 and Doctor of Environmental Engineering in 1974; he also graduated from the University of Sydney Law School with the degree of Master of Environmental Law in 2002 and PhD in Law from Macquarie University in 2007. He explained in his Judicial Affidavit that: the impacts identified and analyzed in the EIA process are all potential or likely impacts; there are a larger number of EIA techniques for predicting the potential environmental impacts; it is important to note that all those methods and techniques are only for predicting the potential environmental impacts, not the real impacts; almost all environmental systems are non-linear and they are subject to chaotic behavior that even the most sophisticated computer could not predict accurately; and the actual or real environmental impact could only be established when the project is in actual operation. He testified, inter alia, that: the higher the temperature the higher the nitrous oxide emitted; in CFB technology, the lower the temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide but not as high as conventional coal; the CFB is the boiler; from the boiler itself,different pollution control facilities are going to be added; and for the overall plant with the pollution control facilities, the particulate matters, nitrogen oxide and sulfur dioxide are under control. (Citations omitted)121
We also note that RP Energy controverted in detail the afore-summarized allegations of the Casiño Group on the four areas of environmental damage that will allegedly occur upon the construction and operation of the power plant:
1. On thermal pollution of coastal waters.
As to the extent of the expected rise in water temperature once the power plant is operational, Ms. Mercado stated in her JudicialAffidavit thus:
Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?
A: The thermal dispersion modeling results show that largest warming change (0.95°C above ambient) is observed in the shallowest (5 m) discharge scenario. The warmest surface temperature change for the deepest (30 m) scenario is 0.18°C. All the simulated scenarios comply with the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m mixing zone. The proposed power plant location is near the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal discharge plume. Since the area is well-flushed, mixing and dilution of the thermal discharge is expected.
It also concluded that corals are less likely to be affected by the cooling water discharge as corals may persist in shallow marine waterswith temperatures ranging from 18°C to 36°C. The predicted highest temperature of 30.75°C, from the 0.95°C increase in ambient in the shallowest (5 m) discharge scenario, is within this range.122
In the same vein, Dr. Ouano stated in his Judicial Affidavit:
Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature change of 1°C to 2°C canalready affect the metabolism and other biological functions of aquatic organisms such as mortality rate and reproduction." What is your expert opinion, if any, on this matter alleged by the Petitioners?
A: Living organisms have proven time and again that they are very adaptable to changes in the environment. Living organisms have been isolated in volcanic vents under the ocean living on the acidic nutrient soup of sulfur and other minerals emitted by the volcano to sub-freezing temperature in Antarctica. Asa general rule, metabolism and reproductive activity [increase] with temperature until a maximum is reached after which [they decline]. For this reason, during winter, animals hibernate and plants become dormant after shedding their leaves. It is on the onset of spring that animals breed and plants bloom when the air and water are warmer. At the middle of autumn when the temperature drops to single digit, whales, fish, birds and other living organisms, which are capable of migrating, move to the other end of the globe where spring is just starting. In the processes of migration, those migratory species have to cross the tropics where the temperature is not just one or two degrees warmer but 10 to 20 degrees warmer. When discussing the impact of 1 to 2 degrees temperature change and its impact on the ecosystem, the most important factors to consider are – (1) Organism Type – specifically its tolerance to temperature change (mammals have higher tolerance); (2) Base Temperature – it is the temperature over the optimum temperature such that an increasewill result in the decline in number of the organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited space or an open ocean that the organism can move to a space more suited to [a] specific need, such as the migratory birds); and (4) Ecosystem Complexity and Succession. The more complex the ecosystem the more stable it is as succession and adaptation [are] more robust.
Normally, the natural variation in water temperature between early morning to late afternoon could be several degrees (four to five degrees centigrade and up to ten degrees centigrade on seasonal basis). Therefore, the less than one degree centigrade change predicted by the GHD modeling would have minimal impact.123
On cross-examination, Dr. Ouano further explained—
ATTY. AZURA:
x x x When you say Organism Type – you mentioned that mammals have a higher tolerance for temperature change?
DR. OUANO:
Yes.
ATTY. AZURA:
What about other types of organisms, Dr. Ouano? Fish for example?
DR. OUANO:
Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, when it comes to cold[-]blooded animals the tolerance is much lower. But again when you are considering x x x fish [e]specially in open ocean you have to remember that nature by itself is x x x very brutal x x x where there is always the prey-predator relationship. Now, most of the fish that we have in open sea [have] already a very strong adaptability mechanism.And in fact, Kingman back in 1964 x x x studied the coal reefaround the gulf of Oman where the temperature variation on day to day basis varied not by 1 degree to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay area which when you’re looking at it between daytime variation, early dawn when it is cold, the air is cold, the sea temperature, sea water is quite cold. Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in the] Subic Bay area is around 2 to 4 degrees by natural variation from the sun as well as from the current that goes around it. So when you are talking about what the report has said of around 1 degree change, the total impact x x x on the fishes will be minimal. x x x
ATTY. AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature variation, are still very adaptable. What about other sea life, Dr. Ouano, for example, sea reptiles?
DR. OUANO:
That’s what I said. The most sensitive part of the marine ecology is physically the corals because corals are non-migratory, they are fix[ed]. Second[ly] x x x corals are also highly dependent on sunlight penetration. If they are exposed out of the sea, they die; if theyare so deep, they die. And that is why I cited Kingman in his studies of coral adaptability [in] the sea ofOman where there was a very high temperature variation, [they] survived.
ATTY. AZURA:
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?
DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural temperature variation from the solar side, the days side as well as the seasonal variation. There are two types of variation since temperatures are very critical. One is the daily, which means from early morning to around 3:00 o’clock, and the other one is seasonal variation because summer, December, January, February are the cold months and then by April, May we are having warm temperature where the temperature goes around 32-33 degrees; Christmas time, it drops to around 18 to 20 degrees so it[']sa variation of around seasonal variation of 14 degrees although some of the fish might even migrate and that is why I was trying to put in corals because they are the ones that are really fix[ed]. They are not in a position to migrate in this season.
ATTY. AZURA:
To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals. DR. OUANO:
Or threatened part because they are the ones [that] are not in a position to migrate.
ATTY AZURA:
In this case, Dr. Ouano, with respectto this project and the projected temperature change, will the corals in Subic Bay be affected?
DR. OUANO:
As far as the outlet is concerned, they have established it outside the coral area. By the time it reaches the coral area the temperature variation, as per the GHD study is very small, it[’]s almost negligible.
ATTY AZURA:
Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about?
DR. OUANO:
If you are talking about a thermometer, you might be talking about, normally about .1 degrees centigrade. That’sthe one that you could more or less ascertain. x x x
ATTY. AZURA:
Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that there is a normal variation in water temperature. In fact, you said there is a variation throughout the day, daily and also throughout the year, seasonal. Just to clarify, Dr. Ouano. When the power plant causes the projected temperature change of 1 degree to 2 degrees Celsius this will be in addition to existing variations? What I mean, Dr. Ouano, just so I can understand, how will that work? How will the temperature change caused by the power plant work with the existing variation? DR. OUANO:
There is something like what we call the zonal mixing. This is an area of approximately one or two hectares where the pipe goes out, the hot water goes out. So that x x x, we have to accept x x x that [throughout it] the zone will be a disturb[ed] zone. After that one or two hectares park the water temperature is well mixed [so] that the temperature above the normal existing variation now practically drops down to almost the normal level.124
2. On air pollution due todust and combustion gases.
To establish that the emissions from the operation of the power plant would be compliant with the standards under the Clean Air Act,125 Ms. Mercado stated in her Judicial Affidavit thus:
271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy?
A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following emissions,which [are] fully compliant with the standards set by DENR:
| |
Predicted GLC126 for 1-hr
averaging period |
National Ambient Air Quality
Guideline Values |
| SO2 |
45.79 µg/Nm3 |
340 µg/Nm3 |
| NO2 |
100.8 µg/Nm3 |
260 µg/Nm3 |
| CO |
10 µg/Nm3 |
35 µg/Nm3 |
| |
Predicted GLC for 8-hr averaging period |
National Ambient Air Quality
Guideline Values |
| CO |
0.19 mg/ncm |
10 µg/Nm3 |
| |
Predicted GLC for 24-hr averaging period |
National Ambient Air Quality
Guideline Values |
| SO2 |
17.11 µg/Nm3 |
180 µg/Nm3 |
| NO2 |
45.79 µg/Nm3 |
150 µg/Nm3 |
| |
Predicted GLC for 1-yr averaging period |
National Ambient Air Quality
Guideline Values |
| SO2 |
6.12 µg/Nm3 |
80 µg/Nm3 |
| NO2 |
No standard |
--- |
| CO |
No standard |
--- |
272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
A: It also established that the highest GLC to CleanAir Act Standards ratio among possible receptors was located 1.6 km North NorthEast ("NNE") of the Power Plant Project. Further, this ratio was valued only at 0.434 or less than half of the upper limit set out in the Clean Air Act. This means that the highest air ambient quality disruption will happen only 1.6 km NNE of the Power Plant Project, and that such disruption would still be compliant with the standards imposed by the Clean Air Act.127
The Casiño Group argued, however, that, as stated inthe EIS, during upset conditions, significant negative environmental impact will result from the emissions. This claim was refuted by RP Energy’s witness during cross-examination:
ATTY. AZURA:
If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the same document, the August 2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, the first table, the one on top appears to show a comparison in normal and upset conditions. I noticed, Ms. Mercado, that the black bars are much higher than the bars in normal condition. Can you state what this means?
MS. MERCADO:
It means there are more emissions that could potentially be released when it is under upset condition.
ATTY. AZURA:
I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3 and so forth and on page 188 of this same document, Annex "9-Mercado," there is a list identifying these receptors, for example, Receptor 6, Your Honor, appears to have been located in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that mean that if upset condition[s] were to occur, the Olongapo City Poblacion will be affected by the emissions? MS. MERCADO:
All it means is that there will be higher emissions and a higher ground concentration. But you might want to alsopay attention to the "y axis," it says there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it means that even under upset conditions… say for R6, the ground level concentration for upset condition is still around .1 or 10% percent only of the Clean Air Act limit. So it’s still much lower than the limit.
ATTY. AZURA:
But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,] emissionswould increase in the Olongapo City Poblacion?
MS. MERCADO:
Not emissions will increase. The emissions will be the same but the ground level concentration, the GLC, will be higher if you compare normal versus upset. But even if it[’]s under upset conditions, it is still only around 10% percent of the Clean Air Act Limit.
x x x x
J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in an upset condition, it will emit less than what the national standards dictate?
MS. MERCADO:
Yes, Your Honor.128
With respect to the claims that the powerplant will release dangerous PAHs and CO, Engr. Sarrki stated in his Judicial Affidavit thus:
Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic Compounds ("VOC") specifically Polycyclic Aromatic Hydrocarbon ("PAH") will be emitted even by CFB boilers. What can you say about this?
A: Actually, the study cited by the Petitioners does not apply to the present case because it does not refer to CFB technology. The study refers to a laboratory-scale tubular Bubbling Fluidized Bed ("BFB") test rig and not a CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB will produce higher PAH emissions.
x x x x
Q: Why can the study cited by Petitioners not apply in the present case?
A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not replicate the staged-air combustion process of the CFB that RP Energy will use. Thisstaged-air process includes the secondary air. Injecting secondary air into the system will lead to more complete combustion and inhibits PAH production. There is a study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of Hazardous Materials B84 (2001) where the findings are discussed.
Also, the small-scale test rig utilized in the study does not simulate the process conditions (hydrodynamics, heat transfer characteristics, solid and gas mixing behavior, etc.) seen in a large scale utility boiler, like those which would be utilized by the Power Plant Project.
x x x x
Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce PAH production?
A: Increase in the excess air ratio will also minimizePAH production. Furthermore, decrease in Calcium to Sulfur moral ratio ("Ca/S"), as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. This is also based on the study entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.
In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and chlorine contents minimizing PAH production. Also, due to optimum conditions for the in-furnace SO2capture, the Ca/S will be relatively low, decreasing PAH production.
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a poisonous, colorless and odorless gas is also produced when there is partial oxidation or when there is not enough oxygen (O2) to form carbon dioxide (CO2)." What can you say about this?
A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In fact, I understand that the projected emissions level of the Power Plant Project compl[ies]with the International Finance Corporation ("IFC") standards. Furthermore, characteristics of CFB technology such as long residence time, uniform temperature and high turbulence provide an effective combustion environment which results [in] lower and safer CO emissions.
Q: I have no further questions for youat the moment. Is there anything you wish to add to the foregoing?
A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as cooking or driving automobiles, will have some emissions that are not considered harmful. It is only when emissions are of a significant level that damage may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH emissions. The high combustion efficiency of CFB technology, due to the long residence time of particles inside the boiler, leads to the minimal emissions of PAH. Furthermore,other factors such as increase in the excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. CFB does not cause emissions beyond scientifically acceptable levels, and we are confident it will not result in the damage speculated by the Petitioners.129
3. On water pollution from toxic coal combustion waste.
With regard to the claim that coal combustion waste produced by the plant will endanger the health of the inhabitants nearby, Dr. Ouano stated in his Judicial Affidavit thus:
Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal combustion waste is highly toxic and is said to cause birth defects and cancer risks among others x x x." What is your expert opinion, if any, on this matter alleged by the Petitioners?
A: Coal is geologically compressed remains of living organisms that roamed the earth several million years ago. In the process of compression, some of the minerals in the soil, rocks or mud, the geologic media for compression, are also imparted into the compressed remains. If the compressing media of mud, sediments and rocks contain high concentration of mercury, uranium, and other toxic substances, the coal formed will likewise contain high concentration of those substances. If the compressing materials have low concentration of those substances, then the coal formed will likewise have low concentration of those substances. If the coal does not contain excessive quantities of toxic substances, the solid residues are even used in agriculture to supply micronutrients and improve the potency of fertilizers. It is used freely as a fill material in roads and other construction activities requiring large volume of fill and as additive in cement manufacture. After all, diamonds that people love to hang around their necks and keep close to the chest are nothing more than the result of special geologic action, as those in volcanic pipes on coal.130
RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the waste generated by the plant will be properly handled, to wit:
4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and fly ash. Bottom ash consists oflarge and fused particles that fall to the bottom of the furnace and mix with the bed media.Fly ash includes finegrained and powdery particles that are carried away by flue gas into the electrostatic precipitator, which is then sifted and collected. These by-products are non-hazardous materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and Boiler Slag have consequent beneficial uses which "generate significant environmental, economic, and performance benefits." Thus, fly ash generated during the process will be sold and transported to cement manufacturing facilities or other local and international industries.
4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal shall be properly handled and stored.
4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a series of screw and chain conveyors and bucket elevator to the bottom ash silo. The collection and handling system is enclosed to prevent dust generation. Discharge chutes will be installed at the base of the bottom ash silo for unloading. Open trucks will be used to collect ash through the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash cells. A portion of the bottom ash will be reused as bed materialthrough the installation of a bed media regeneration system (or ash recycle). Recycled bottom ash will be sieved using a vibrating screen and transported to a bed material surge bin for re-injection into the boiler.
4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection hopper using compressed air and transported in dry state to the fly ash silo. Two discharge chutes will be installed at the base of the fly ash silo. Fly ash can either be dry-transferred through a loading spout into an enclosed lorry or truck for selling, re-cycling, or wet-transferred through a wet unloader into open dump trucks and transported to ash cells. Fly ash discharge will operate in timed cycles, with an override function to achievecontinuous discharge if required. Fly ash isolation valves in each branch line will prevent leakage and backflow into non-operating lines.
4.1.53 Approximately 120,000m˛ will be required for the construction of the ash cell. Ash will be stacked along the sloping hill, within a grid of excavations (i.e. cells) with a 5m embankment. Excavated soils will be used for embankment construction and backfill. To prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum depth of400mm will be laid at the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil backfill will be applied to immobilize ash and prevent migration via wind. Ash cell walls will be lined with high-density polyethylene to prevent seepage. This procedure and treatment method is in fact suitable for disposal of toxic and hazardous wastes although fly ash is not classified as toxic and hazardous materials.131
Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified thus:
J. LEAGOGO:
In terms of fault lines, did you study whether this project site is in any fault line?
DR. OUANO:
There are some fault linesand in fact, in the Philippines it is very difficult to find an area except Palawan where there is no fault line within 20 to 30 [kilometers]. But then fault lines as well as earthquakes really [depend] upon your engineering design. I mean, Sto. Tomas University has withstood all the potential earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or so because the design for it back in 1600 they are already using what we call floating foundation. So if the engineering side for it[,] technology is there to withstand the expected fault line [movement]. J. LEAGOGO:
What is the engineering side of the project? You said UST is floating.
DR. OUANO:
The foundation, that means to say you don’t break…
J. LEAGOGO:
Floating foundation. What about this, what kind of foundation?
DR. OUANO:
It will now depend on their engineering design, the type of equipment…
J. LEAGOGO:
No, but did you read it in their report?
DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the equipment supplier.
J. LEAGOGO:
So it[’]s not yet there?
DR. OUANO:
It[’]s not yet there in the site but it is also covered inour Building Code what are the intensities of earthquakes expected of the different areas in the Philippines.
J. LEAGOGO:
Have you checked our geo-hazard maps in the Philippines to check on this project site?
DR. OUANO:
Yes. It is included there in the EIA Report.
J. LEAGOGO:
It[’]s there?
DR. OUANO:
It[’]s there.132
4. On acid deposition in aquatic and terrestrial ecosystems.
Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus:
Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power plant will release 1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per year. These oxides are the precursors to the formation of sulfuric acid and nitric acid which are responsible for acid deposition." Whatis your expert opinion on this matter alleged by the Petitioners?
A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial activities and geologic activities as well as from human activities such as power plants and fertilizer usage in agriculture. SO2 is also found in air, water and soil from bacterial, geologic and human activities. NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to widely redistribute and recycle those essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and animal life would be limited to small areas of this planet where nitrogen and sulfur are found in abundance. With intensive agricultural practices, nitrogen and sulfur are added in the soil as fertilizers.
Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those values set in the air quality standards. NO2 and SO2 in the air in concentrations lower than those set in the standards have beneficial effect to the environment and agriculture and are commonly known as micronutrients.133
On clarificatory questions from the appellate court, the matter was further dissected thus:
J. LEAGOGO:
x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness answered, yes, itwill produce 886 tons of sulfur dioxide per year. And he also answered yes, that these oxides are the precursors to the formation of sulfuric acid and nitric acid. Now my clarificatory question is, with this kind of releases there will be acid rain?
DR. OUANO:
No.
J. LEAGOGO:
Why?
DR. OUANO:
Because it[’]s so dilute[d].
J. LEAGOGO:
It will?
DR. OUANO:
Because the acid concentration is so dilute[d] so that it is not going to cause acid rain.
J. LEAGOGO:
The acid concentration is so diluted that it will not cause acid rain?
DR. OUANO:
Yes .
J. LEAGOGO:
What do you mean it[’]s so diluted? How will it be diluted?
DR. OUANO:
Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the air in the atmosphere. And besides this 886 tons, this is not released in one go, it is released almost throughout the year.
J. LEAGOGO:
You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2 concentration are excessive." So whendo you consider it as excessive?
DR. OUANO:
That is something when you are talking about acid…
J. LEAGOGO:
In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive?
DR. OUANO:
It is in concentration not on tons weight, Your Honor.
J. LEAGOGO:
In concentration?
DR. OUANO:
In milligrams per cubic meter, milligrams per standard cubic meter.
J. LEAGOGO:
So being an expert, whatwill be the concentration of this kind of 1,888 tons of nitrous oxide? What will be the concentration in terms of your…?
DR. OUANO:
If the concentration is in excess ofsomething like 8,000 micrograms per standard cubic meters, then there isalready potential for acid rain.
J. LEAGOGO:
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?
DR. OUANO:
Yes .
J. LEAGOGO:
In terms of concentration, what will that be?
DR. OUANO:
In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the time when acid rain will start [is when the concentration gets] around 8,000 milligrams per standard cubic meters. So we have 19 compared to 8,000. So weare very, very safe.
J. LEAGOGO:
What about SO2?
DR. OUANO:
SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur dioxide this acid rain most likely will start at around 7,000 milligrams per standard cubic meter but then … sorry, it[’]s around 3,400 micrograms per cubic meter. That is the concentration for sulfur dioxide, and in our plant it will be around 45 micrograms per standard cubic meter. So the acid rain will start at 3,400 and the emission is estimated here to result to concentration of 45.7 micrograms.
J. LEAGOGO:
That is what GHD said in their report.
DR. OUANO:
Yes. So that is the factor of x x x safety that we have.134
Apart from the foregoing evidence, wealso note that the above and other environmental concerns are extensively addressed in RP Energy’s Environmental Management Plan or Program(EMP). The EMP is "a section in the EIS that details the prevention, mitigation, compensation, contingency and monitoring measures to enhance positive impacts and minimize negative impacts and risks of a proposed project or undertaking."135 One of the conditions of the ECC is that RP Energy shall strictly comply with and implement its approved EMP. The Casiño Group failed to contest, with proof, the adequacy of the mitigating measures stated in the aforesaid EMP.
In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the alleged significant environmental damage that will be caused by the project, the appellate court relied mainly on the testimonies of experts, which we find to be in accord withjudicial precedents. Thus, we ruled in one case:
Although courts are not ordinarily bound by testimonies of experts, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies,the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which serve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it isto be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable inthe absence of an abuse of that discretion.136
Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the alleged grave environmental damage which will be caused by the construction and operation of the power plant.
In another vein, we, likewise, agree with the observationsof the appellate court that the type of coal which shall be used in the power plant has important implications as to the possible significant negative environmental impacts of the subject project.137 However, there is no coal supply agreement, as of yet, entered into by RP Energy with a third-party supplier. In accordance with the terms and conditions of the ECC and in compliance with existing environmental laws and standards, RP Energy is obligated to make use of the proper coal type that will not cause significant negative environmental impacts.
The alleged negative environmental
assessment of the project by experts in a
report generated during the social
acceptability consultations
The Casiño Group also relies heavily on a report on the social acceptability process of the power plant project to bolster itsclaim that the project will cause grave environmental damage. We purposely discuss this matter in this separate subsection for reasons which will be made clear shortly.
But first we shall present the pertinent contents of this report.
According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social acceptabilitypolicy consultations with different stakeholders on RP Energy’s proposed 600 MW coal plant project at the Subic Bay Exhibition and Convention Center. The results thereof are contained in a document prepared by SBMA entitled "Final Report: Social Acceptability Process for RP Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We notethat SBMA adopted the Final Report as a common exhibit with the Casiño Group in the course of the proceedings before the appellate court.
The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant from the participants. Their concerns included environmental, health, economic and socio-cultural factors. Pertinent to this case is the alleged assessment, contained in the Final Report, of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the University of the Philippines, Los Baños and a forest ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related information as to public health; and (3) Andre Jon Uychiaco, a marine biologist.
The Final Report stated these experts’alleged views on the project, thus:
IV. EXPERTS’ OPINION
x x x x
The specialists shared the judgment that the conditions were not present to merit the operation of a coal-fired power plant,and to pursue and carry out the project with confidence and assurance that the natural assets and ecosystems within the Freeport area would not be unduly compromised, or that irreversible damage would not occur and that the threats to the flora and fauna within the immediate community and its surroundings would be adequately addressed. The three experts were also of the same opinion that the proposed coal plant project would pose a wide range of negative impacts on the environment, the ecosystems and human population within the impact zone.
The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI to be incomplete and limited in scope based on the following observations:
i. The assessment failed to include areas 10km. to 50km. from the operation site, although according tothe panel, sulfur emissions could extend as far as 40-50 km.
ii. The EIA neglected to include other forests in the Freeport in its scope and that there were no specific details on the protection of the endangered flora and endemic fauna in the area. Soil, grassland, brush land, beach forests and home gardens were also apparently not included in the study.
iii. The sampling methods used inthe study were limited and insufficient for effective long-term monitoring of surface water, erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coalfired power plant [on] its environs and the community therein. Primary among these were the following:
i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would diminish forest cover. The acid rain would apparently worsen the acidity of the soil in the Freeport.
ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulationof contaminants and toxic materials which would eventually lead to the overall reduction of marine productivity.
iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals suchas mercury and lead to the surrounding region, which would adversely affect the health of the populace in the vicinity.
V. FINDINGS
Based on their analyses of the subject matter, the specialists recommended that the SBMA re-scrutinize the coal-fired power plant project with the following goals in mind:
i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and development plans, including its Protected Area Management Plan;
ii. To properly determine actual and potential costs and benefits;
iii. To effectively determine the impacts on environment and health; and
iv. To ensure a complete and comprehensive impacts zone study.
The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of The Proposed Coal Plant Project Relative To Each Stakeholder Which Should Include The Environment As Provider Of Numerous Environmental Goods And Services.
They also recommended an Integrated/Programmatic Environmental Impact Assessmentto accurately determine the environmental status of the Freeport ecosystem as basis and reference in evaluating future similar projects. The need for a more Comprehensive Monitoring System for the Environment and Natural Resourceswas also reiterated by the panel.138
Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP Energy relative to the project:
Key Observations and Recommendations on the EIS of Proposed RPE Project
Rex Victor O. Cruz
Based on SBMA SAP on December 7-9, 2011
1. The baseline vegetation analysis was limited only within the project site and its immediate vicinity. No vegetation analysis was done in the brushland areas in the peninsula which is likely to be affected in the event acid rain forms due to emissions from the power plant.
2. The forest in the remaining forests inthe Freeport was not considered as impact zone as indicated by the lack ofdescription of these forests and the potential impacts the project might have on these forests. This appears to be a key omission in the EIS considering that these forests are well within 40 to 50 km away from the site and that there are studies showing that the impacts of sulphur emissions can extend as far as 40 to 50 km away from the source.
3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed project site. There will be a need to make sure that these species are protected from being damaged permanently in wholesale. Appropriate measures such as ex situconservation and translocation if feasible must be implemented.
4. The Project site is largely in grassland interspersed with some trees. These plants if affected by acid rain or by sulphur emissions may disappear and have consequences on the soil properties and hydrological processes in the area. Accelerated soil erosion and increased surface runoff and reduced infiltration of rainwater into the soil.
5. The rest of the peninsula is covered with brushland but were never included as part of the impact zone.
6. There are home gardens along the coastal areas of the site planted to ornamental and agricultural crops which are likely to be affected by acid rain.
7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be affectedalso by acid rain.
8. There are no Environmentally Critical Areas within the 1 km radius from the project site. However, the OlongapoWatershed Forest Reserve, a protected area is approximately 10 kmsouthwest of the projectsite. Considering the prevailing wind movement in the area, this forest reserve is likely to be affected by acid rain if it occurs from the emission of the power plant. This forest reserve is however not included as partof the potential impact area.
9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with moderate to severe erosion potential. The sparse vegetation cover in the vicinity of the projectsite is likely a result of the highly acidic soil and the nutrient deficiency. Additional acidity may result from acid rain that may form in the area which could further make it harder for the plants to grow in the area that in turn could exacerbate the already severe erosion in the area. 10. There is a need to review the proposalto ensure that the proposed project is consistent with the vision for the Freeport as enunciated in the SBMA Master Plan and the Protected Area Management Plan. This will reinforce the validity and legitimacy of these plans as a legitimate framework for screening potential locators in the Freeport. Itwill also reinforce the trust and confidence of the stakeholders on the competence and authority of the SBMA that would translate in stronger popular support to the programs implemented in the Freeport.
11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the minimum amount and that adequate funds will be provided by the proponent as necessary beyond the minimum amounts. Furthermore the basis for the amounts allocated for the items (public liability and rehabilitation) in Trust Fund and in EGF (tree planting and landscaping, artificial reef establishment) must be clarified. The specific damages and impacts that will be covered by the TF and EGF must also be presented clearly at the outset to avoid protracted negotiations in the event of actual impacts occurring in the future.
12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of measurement. More importantly, the proposed method of measurement (sampling transect) while adequate for estimating the diversity of indices for benchmarking is not sufficient for long[-]term monitoring. Instead, long[-]term monitoringplots (at least 1 hectare in size) should be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.
13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the project site, it will be useful not only for mitigating and avoiding unnecessary adverse impacts ofthe project but also for improving management decisions if long[-]term monitoring plots for the remaining natural forests in the Freeport are established. These plots will also be useful for the study of the dynamic interactions of terrestrial flora and fauna with climate change, farming and other human activities and the resulting influences on soil, water, biodiversity, and other vital ecosystem services in the Freeport.139
We agree with the appellate court that the alleged statements by these experts cannot be given weight because they are hearsay evidence. None of these alleged experts testified before the appellate court to confirm the pertinent contents of the Final Report. No reason appears in the records of this case as to why the Casiño Group failed to present these expert witnesses.
We note, however, that these statements, on their face, especially the observations of Dr. Cruz, raise serious objections to the environmental soundness of the project, specifically, the EIS thereof.It brings to fore the question of whether the Court can, on its own, compel the testimonies of these alleged experts in order to shed light on these matters in view of the rightat stake— not just damage to the environment but the health, well-being and,ultimately, the livesof those who may be affected by the project.
The Rules of Procedure for Environmental Cases liberally provide the courts with means and methods to obtain sufficient information in order to adequately protect orsafeguard the right to a healthful and balanced ecology. In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a failure to settle, the judge shall, among others, determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae). While, in Section 12141 of Rule 7 (Writ of Kalikasan), a party may avail of discovery measures: (1) ocular inspection and (2) production or inspection of documents or things. The liberality of the Rules in gathering and even compelling information, specifically with regard to the Writ of Kalikasan, is explained in this wise: [T]he writ of kalikasanwas refashioned as a tool to bridge the gap between allegation and proof by providing a remedy for would-be environmental litigants to compel the production of information within the custody of the government. The writ would effectively serve as a remedy for the enforcement of the right to information about the environment. The scope of the fact-finding power could be: (1) anything related to the issuance, grant of a government permit issued or information controlled by the government or private entity and (2) [i]nformation contained in documents such as environmental compliance certificate (ECC) and other government records. In addition, the [w]rit may also be employed to compel the production of information, subject to constitutional limitations. This function is analogous to a discovery measure, and may be availed of upon application for the writ.142
Clearly, in environmental cases, the power toappoint friends of the court in order to shed light on matters requiring special technical expertise as well as the power to order ocular inspections and production of documents or things evince the main thrust of, and the spirit behind, the Rules to allow the court sufficient leeway in acquiring the necessary information to rule on the issues presented for its resolution, to the end that the right toa healthful and balanced ecology may be adequately protected. To draw a parallel, in the protection of the constitutional rights of an accused, when life or liberty isat stake, the testimonies of witnesses may be compelled as an attribute of the Due Process Clause. Here, where the right to a healthful and balanced ecology of a substantial magnitude is at stake, should we not tread the path of caution and prudence by compelling the testimonies of these alleged experts?
After due consideration, we find that, based on the statements in the Final Report, there is no sufficiently compelling reason to compel the testimonies of these alleged expert witnesses for the following reasons.
First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the study or design/implementation (or some other aspect) of the project which provides a causal link or, at least, a reasonable connection between the construction and operation ofthe project vis-à-vis potential grave environmental damage. In particular, they do not explain why the Environmental Management Plan (EMP) contained in the EIS of the project will notadequately address these concerns.
Second, some of the concerns raisedin the alleged statements, like acid rain, warming and acidification of the seawater, and discharge of pollutants were, as previously discussed, addressed by the evidence presented by RP Energy before the appellate court. Again, these alleged statements do not explain why such concerns are not adequately covered by the EMP of RP Energy.
Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do not clearly and specifically establish how these omissions have led to the issuance of an ECC that will pose significant negative environmental impacts once the project is constructed and becomes operational. The recommendations stated therein would seem to suggest points for improvement in the operation and monitoring of the project,but they do not clearly show why such recommendations are indispensable for the project to comply with existing environmental laws and standards, or how non-compliance with such recommendations will lead to an environmental damage of the magnitude contemplatedunder the writ of kalikasan. Again, these statements do not state with sufficient particularity how the EMP in the EIS failed to adequately address these concerns.
Fourth, because the reason for the non-presentation of the alleged expert witnesses does not appear on record, we cannot assume that their testimonies are being unduly suppressed.
By ruling that we do not find a sufficiently compelling reason to compel the taking of the testimonies of these alleged expert witnesses in relation to their serious objections to the power plant project, we do not foreclose the possibility that their testimonies could later on be presented, in a proper case, to more directly, specifically and sufficientlyassail the environmental soundness of the project and establish the requisite magnitude of actualor threatened environmental damage, if indeed present. After all, their sense ofcivic duty may well prevail upon them to voluntarily testify, if there are truly sufficient reasons tostop the project, above and beyond their inadequate claims in the Final Report that the project should not be pursued. As things now stand,however, we have insufficient bases to compel their testimonies for the reasons already proffered.
The alleged admissions of grave
environmental damage in the EIS of the
project.
In their Omnibus Motions for Clarification and Reconsideration before the appellate court and Petition for Review before thisCourt, the Casiño Group belatedly claims that the statements in the EIS prepared by RPEnergy established the significant negative environmental impacts of the project. They argue in this manner:
Acid Rain
35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project, acid rain may occur in the combustion of coal, to wit – x x x x
During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems for residents within the impact area.
x x x x
Asthma Attacks
36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power plant operations, to wit –
x x x x
The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended particulates from plant operations.144
RP Energy, however, counters that the above portions of the EIS were quoted out of context. As to the subject of acid rain, the EIS states in full:
Operation
During the operation phase, combustion of coal will result in emissions of particulates, SOx and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems for residents within the impact area. Emissions may also have an effect onvegetation (Section 4.1.4.2). However, the use of CFBC technology is a built-in measure that results in reduced emission concentrations. SOx emissions will beminimised by the inclusion of a desulfurisation process, whilst NOx emissions will be reduced as the coal is burned at a temperature lower than that required to oxidise nitrogen.145 (Emphasis supplied)
As to the subject of asthma attacks, the EIS states in full:
The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposureto suspended particulates from plant operations. Coal and ash particulates may also become suspended and dispersed into the air during unloading and transport, depending on wind speed and direction. However, effect on air quality due to windblown coal particulates will be insignificant as the coal handling system will have enclosures (i.e. enclosed conveyors and coal dome) to eliminate the exposure of coal to open air, and therefore greatly reduce the potential for particulates from being carried away by wind (coalhandling systems, Section 3.4.3.3). In addition, the proposed process will include an electrostaticprecipitator that will remove fly ash from the flue gas prior to its release through the stacks, and so particulates emissions will be minimal.146 (Emphasis supplied)
We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma attacks, it goes on to state that there are mitigating measures that will be put in place to prevent these ill effects. Quite clearly, the Casiño Group quoted piecemeal the EIS in sucha way as to mislead this Court as to its true and full contents.
We deplore the way the Casiño Group has argued this point and we take this time to remind it that litigants should not trifle withcourt processes. Along the same lines, we note how the Casiño Group has made serious allegations in its Petition for Writ of Kalikasanbut failed to substantiate the same in the course of the proceedings before the appellate court. In particular, during the preliminary conference of this case, the Casiño Group expressly abandoned its factual claims on the alleged grave environmental damage that will be caused by the power plant (i.e., air, water and land pollution) and, instead, limited itself to legal issues regarding the alleged non-compliance of RP Energy with certain laws and rules in the procurement of the ECC.147 We also note how the Casiño Group failed to comment on the subject Petitions before this Court, which led this Court to eventually dispense with its comment.148 We must express our disapproval over the way it has prosecuted itsclaims, bordering as it does on trifling with court processes. We deem itproper, therefore, to admonishit to be more circumspect in how it prosecutesits claims.
In sum, we agree with the appellate court that the Casiño Group failed to substantiate its claims thatthe construction and operation of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan. The evidence it presented is inadequate to establish the factual bases of its claims.
II.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as representative of RP Energy, in the Statement of Accountability of the ECC.
The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement of Accountability portion of the ECC.
We shall discuss the correctness ofthis ruling on both procedural and substantive grounds. Procedurally, we cannot fault the DENR for protesting the manner by which the appellate court resolved the issue of the aforesaid lack of signature. We agree with the DENR that this issue was not among those raised by the Casiño Group in its Petition for Writ of Kalikasan.149 What is more, this was not one of the triable issues specificallyset during the preliminary conference of this case.150
How then did the issue oflack of signature arise?
A review of the voluminous records indicates that the matterof the lack of signature was discussed, developed or surfaced only inthe course of the hearings, specifically, on clarificatory questions from the appellate court, to wit:
J. LEAGOGO:
I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this Environmental Compliance Certificate dated December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your "Exhibit "18." Would you like to go over this? Are you familiar with this document?
MS. MERCADO:
Yes, it[’]s my Annex "3," Your Honor.
J. LEAGOGO:
I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the letter dated December 22, 2008. And on page 3, Dr. Julian Amador recommended approval and it was approved by Sec. Atienza. You see that on page 3?
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Okay. On the same page, page 3, there’s a Statement of Accountability.
MS. MERCADO:
Yes, Your Honor.
J. LEAGOGO:
Luis, who is Luis Miguel Aboitiz?
MS. MERCADO:
During that time he was the authorized representative of RP Energy,
Your Honor.
J. LEAGOGO:
Now, who is the authorized representative of RP Energy?
MS. MERCADO:
It would be Mr. Aaron Domingo, I believe.
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in thisEnvironmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This copy was not signed because during….
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.151
We find this line of questioning inadequate to apprise the parties that the lack of signature would be a key issue in this case; as in fact it became decisive in the eventual invalidation of the ECC by the appellate court.
Concededly, a court has the power to suspend its rules of procedure in order to attain substantial justice so that it has the discretion, in exceptional cases, to take into consideration matters not originally within the scope of the issues raised in the pleadings or set during the preliminary conference, in order to prevent a miscarriage of justice. In the case at bar, the importance of the signature cannot be seriously doubted because it goes into the consent and commitment of the project proponent to comply with the conditions of the ECC, which is vital to the protection of the right to a balanced and healthful ecology of those who may be affected by the project. Nonetheless, the power of a court tosuspend its rules of procedure in exceptional cases does not license it to foist a surprise on the parties in a given case. To illustrate, in oral arguments before this Court, involving sufficiently important public interest cases, we note that individual members of the Court, from time to time, point out matters that may not have been specifically covered by the advisory (the advisory delineates the issues to be argued and decided). However, a directive is given to the concerned parties to discuss the aforesaid matters in their memoranda. Such a procedure ensures that, at the very least, the parties are apprised that the Court has taken an interest in such matters and may adjudicate the case on the basis thereof. Thus, the parties are given an opportunity to adequately argue the issue or meet the issue head-on. We, therefore, find that the appellate court should have, at the very least, directed RP Energy and the DENR to discuss and elaborate on the issue of lack of signature in the presentation of their evidence and memoranda, beforemaking a definitive ruling that the lack thereof invalidated the ECC.This is in keeping with the basic tenets of due process.
At any rate, we shall disregard the procedural defect and rule directly on whether the lack of signature invalidated the ECC in the interest of substantial justice.
The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do not specifically state that the lack of signature in the Statement of Accountability has the effect of invalidating the ECC. Unlike in wills or donations, where failure to comply withthe specific form prescribed by law leads to its nullity,152 the applicable laws here are silentwith respect to the necessity of a signature in the Statement of Accountability and the effect of the lack thereof. This is, of course, understandable because the Statement of Accountability is a mere off-shoot of the rule-making powers of the DENR relative tothe implementation of PD 1151 and PD 1586. To determine, therefore, the effect of the lack of signature, we must look atthe significance thereof under the Environmental Impact Assessment (EIA) Rules of the DENR and the surrounding circumstances of this case.
To place this issue in its proper context, a helpful overview of the stages of the EIA process, taken from the Revised Manual, is reproduced below:
Figure 1-3 Overview of Stages of the Philippine EIA Process153
1.0 SCREENING
 |
Screeningdetermines if a project is covered or not covered by the PEISS.154 If a project is covered, screening further determines what document type the project should prepare to secure the needed approval, and what the rest of the requirements are in terms of EMB office of application, endorsing and decision authorities, duration of processing. |
2.0 SCOPING
|
Scopingis a Proponent-driven multi-sectoral formal process of determining the focused Terms of Reference of the EIA Study. Scoping identifies the most significant issues/impacts of a proposed project, and then, delimits the extent of baseline information to those necessary to evaluate and mitigate the impacts. The need for and scope of an Environmental Risk Assessment (ERA) is also done during the scoping session. Scoping is done with the local community through Public Scoping and with a third party EIA Review Committee (EIARC) through Technical Scoping, both with the participation of the DENR-EMB. The process results in a signed Formal Scoping Checklist by the review team, with final approval by the EMB Chief. |
EIA STUDY and
3.0 REPORT
PREPARATION
|
The EIA Studyinvolves a description of the proposed project and its alternatives, characterization of the project environment, impact identification and prediction, evaluation of impact significance, impact mitigation, formulation of Environmental Management and Monitoring Plan, withcorresponding cost estimates and institutional support commitment. The study results are presented in an EIA Reportfor which an outline is prescribed by EMB for every major document type |
EIA REPORT
4.0 REPORT and
EVALUATION
|
Review of EIA Reportsnormally entails an EMB procedural screening for compliance with minimum requirements specified during Scoping, followed by a substantive review of either composed third party experts commissioned by EMB as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-based applications. EMB evaluates the EIARC recommendations and the public’s inputs during public consultations/hearings in the process of recommending a decision on the application. The EIARC Chair signs EIARC recommendations including issues outside the mandate of the EMB. The entire EIA review and evaluation process is summarized in the Review Process Report (RPR) of the EMB, which includes a draft decision document. |
5.0 DECISION
MAKING
|
Decision Making involves evaluation of EIA recommendations and the draft decision document, resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a covered project is issued its certificate of Environmental Compliance Commitment (ECC) while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC). Endorsing and deciding authorities are designated by AO 155 42, and further detailed in this Manual for every report type. Moreover, the Proponent signs a sworn statement of full responsibility on implementation of its commitments prior to the release of the ECC. 156 The ECC is then transmitted to concerned LGUs and other GAs for integration into their decisionmaking process. The regulated part of EIA Review is limited to the processes within EMB control. The timelines for the issuance of decision documents provided for in AO 42 and DAO 2003-30 are applicable only from the time the EIA Report is accepted for substantive review to the time a decision is issued on the application. |
MONITORING.
6.0 VALIDATION, and
EVALUATION/
AUDIT |
Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent against the ECC and itscommitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are adequately prevented or mitigated. |
The signing of the Statement of Accountability takes placeat the Decision Making Stage. After a favorable review of its ECC application, the project proponent, through its authorized representative, is made to sign a sworn statement of full responsibility on the implementation ofits commitments prior to the official release of the ECC.
The definition of the ECC in the Revised Manual highlights the importance of the signing of the Statement of Accountability:
Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance Commitment to which the Proponent conforms with, after DENR-EMB explains the ECC conditions, by signing the sworn undertaking of full responsibility over implementation of specified measures which are necessary to comply with existing environmental regulations or to operate within best environmental practices that are not currently covered by existing laws. It is a document issued by the DENR/EMB after a positive review of an ECC application, certifying that the Proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan. The ECC also provides guidance to other agencies and to LGUs on EIA findings and recommendations, which need to be considered in their respective decision-making process.157 (Emphasis supplied)
As can be seen, the signing of the Statement of Accountabilityis an integral and significant component of the EIA process and the ECC itself. The evident intention is to bind the project proponentto the ECC conditions, which will ensure that the project will not cause significant negative environmental impacts by the "implementation of specified measures which are necessary to comply with existing environmental regulations or tooperate within best environmental practices that are not currently covered by existing laws." Indeed, the EIA process would be a meaningless exercise if the project proponent shall not be strictly bound to faithfully comply withthe conditions necessary toadequately protect the right of the people to a healthful and balanced ecology.
Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s representative in the Statement of Accountability is necessary for the validity of the ECC. It is not, as RP Energy would have it, a mere formality and its absence a mere formal defect.
The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP Energy, in the Statement of Accountability sufficient ground to invalidate the ECC?
Viewed within the particular circumstances of this case, we answer in the negative.
While it is clear that the signing of the Statement of Accountability is necessary for the validity ofthe ECC, we cannot close oureyes to the particular circumstances of this case. So often have we ruled that this Court is not merely a court of law but a court of justice. We find that there are several circumstances present in this case which militate against the invalidation of the ECC on this ground.
We explain.
First, the reason for the lack of signature was not adequately taken into consideration by the appellate court. To reiterate, the matter surfaced during the hearing of this case on clarificatory questions by the appellate court, viz:
J. LEAGOGO:
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in this Environmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?
MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This copy was not signed because during…
J. LEAGOGO:
But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your Exhibit "18" is not signed by Mr. Aboitiz?
MS. MERCADO:
That’s correct, Your Honor.158 (Emphasis supplied)
Due to the inadequacy of the transcriptand the apparent lack of opportunity for the witness to explain the lack of signature, we find that the witness’ testimony does not, by itself, indicate that there was a deliberate or malicious intent not to sign the Statement of Accountability.
Second, as previously discussed, the concerned parties to this case, specifically, the DENR and RP Energy, werenot properly apprised that the issue relative to the lack of signature would be decisive inthe determination of the validity of the ECC. Consequently, the DENR and RPEnergy cannot be faulted for not presenting proof during the course ofthe hearings to squarely tackle the issue of lack of signature.
Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature invalidated the ECC,RP Energy attached, to its Motion for Partial Reconsideration, a certified true copy of the ECC, issued by the DENREMB, which bore the signature of Mr. Aboitiz. The certified true copy of the ECC showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008.159
The authenticity and veracity of this certified true copy of the ECC was not controverted by the Casiño Group in itscomment on RP Energy’s motion for partial reconsideration before the appellate court nor in their petition before this Court. Thus, in accordance with the presumption of regularity in the performance of official duties, it remains uncontroverted that the ECC on file with the DENR contains the requisite signature of Mr. Aboitiz in the Statement of Accountability portion.
As previously noted, the DENR and RPEnergy were not properly apprised that the issue relative to the lack ofsignature would be decisive in the determination of the validity of the ECC. As a result, we cannot fault RP Energy for submitting the certified true copy of the ECC only after it learned that the appellate court had invalidated the ECC on the ground of lack ofsignature in its January 30, 2013 Decision.
We note, however, that, as previously discussed, the certified true copy of the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008 or two days after the ECC’s official release on December 22, 2008. The aforediscussed rules under the Revised Manual, however, state that the proponent shall sign the sworn statement of full responsibility on implementation of its commitments priorto the release of the ECC. Itwould seem that the ECC was first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the DENR to serve as its file copy. Admittedly, there is lack of strict compliance with the rules although the signature ispresent. Be thatas it may, we find nothing in the records to indicate that this was done with bad faith or inexcusable negligence because of the inadequacy of the evidence and arguments presented, relative to the issue of lack of signature, in view of the manner this issue arose in this case, as previously discussed. Absent such proof, we are not prepared to rule that the procedure adopted by the DENR was done with bad faithor inexcusable negligence but we remind the DENR to be more circumspect in following the rules it provided in the Revised Manual. Thus, we rule that the signature requirement was substantially complied with pro hac vice.
Fourth, we partly agree with the DENRthat the subsequent letter-requests for amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate its implied conformity to the ECC conditions. In practical terms, if future litigation should occur due to violations of the ECC conditions, RP Energy would be estopped from denying its consent and commitment to the ECC conditions even if there was no signature in the Statement of Accountability. However, we note that the Statement of Accountability precisely serves to obviate any doubt as to the consent and commitment of the project proponent to the ECC conditions. At any rate, the aforesaid letter-requests do additionally indicate RP Energy’s conformity to the ECC conditions and, thus, negate a pattern to maliciously evade accountability for the ECC conditions or to intentionally create a "loophole" in the ECC to be exploited in a possible futurelitigation over non-compliance with the ECC conditions.
In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the signature is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP Energy were not properly apprised of the issue of lack ofsignature in order for them to present controverting evidence and arguments on this point, as the matter only developed during the course of the proceedings upon clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it learned that the ECC had been invalidated on the ground of lack of signature in the January 30, 2013 Decision of the appellate court.
The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability portion, was issued by the DENR-EMB and remains uncontroverted. Itshowed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. Although the signing was done two days after the official release of the ECC on December 22, 2008, absent sufficient proof, we are not prepared to rule that the procedure adoptedby the DENR was done with bad faith or inexcusable negligence. Thus, werule that the signature requirement was substantially complied with pro hac vice.
III.
Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact assessment (EIA) because of the utilization of inappropriate EIA documents.
Upholding the arguments of the Casiño Group, the appellate court ruled that the first and second amendments tothe ECC were invalid because the ECC contained an express restriction that any expansion of the project beyond the project description shall be the subject of a new EIA. It found that both amendments failed to comply with the appropriate EIA documentary requirements under DAO 2003-30 and the Revised Manual. In particular, it found that the Environmental Performance Report and Management Plan (EPRMP) and Project Description Report (PDR), which RP Energy submitted tothe DENR, relative to the application for the first and second amendments, respectively, were not the proper EIA document type. Hence, the appellate court ruled that the aforesaid amendments were invalid.
Preliminarily, we must state that executive actions carry presumptive validity so that the burden of proof is on the Casiño Group to show that the procedure adopted bythe DENR in granting the amendments to the ECC were done with grave abuse of discretion. More so here because the administration of the EIA process involves special technical skill or knowledge which the law has specifically vested in the DENR.
After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous EIA documents of RP Energy appearing in the records of this case, we find that the appellate court made an erroneous interpretation and application of the pertinent rules.
We explain.
As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized the right ofthe people to a healthful environment.160 Pursuant thereto, in every action, project or undertaking, which significantly affects the quality of the environment, all agencies and instrumentalities of the national government, including government-owned or -controlled corporations, as well as private corporations, firms, and entities were required to prepare, file and include a statement (i.e., Environmental Impact Statement or EIS) containing:
(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 longterm productivity of the same; and
(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use and commitment are warranted.161
To further strengthen and develop the EIS, PD1586 was promulgated, which established the Philippine Environmental Impact Statement System (PEISS). The PEISS is "a systems-oriented and integrated approach to the EIS system to ensure a rational balance between socio-economic development and environmental protection for the benefit of present and future generations."162 The ECC requirement ismandated under Section 4 thereof:
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects. The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his dulyauthorized representative. x x x (Emphasis supplied)
The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory for private orpublic projects thatmay significantly affect the quality of the environment. It involves evaluating and predicting the likely impacts of the project on the environment, designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community’s welfare.163
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to determine when a project is required to secure an ECC and when it is not. When an ECC is not required, the project proponent procures a Certificate of Non-Coverage (CNC).164 As part of the EIA process, the project proponent is required to submit certain studies or reports (i.e., EIA document type) to the DENR-EMB, which willbe used in the review process in assessing the environmental impact of the project and the adequacy of the corresponding environmental management plan or program to address such environmental impact. This will then be part of the bases to grant or deny the application for an ECC or CNC, as the case may be.
Table 1-4 of the Revised Manual summarizes the required EIA document type for each project category. It classifies a project as belonging to group I, II, III, IV or V, where:
I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or Non-Environmentally Critical Area (NECA),
II- Non-Environmentally Critical Projects (NECPs) in ECA,
III- NECPs in NECA,
IV- Co-located Projects, and
V- Unclassified Projects.
The aforesaid table then further classifies a project, as pertinent to this case, as belonging to category A,B or C, where:
A- new;
B- existing projects for modification or re-start up; and
C- operating projects without an ECC.
Finally, the aforesaid table considers whether the project is single or co-located.165 After which, it states the appropriateEIA document typeneeded for the application for an ECC or CNC, as the case may be.
The appropriate EIA document type vis-à-vis a particular project depends on the potential significant environmental impact of the project. At the highest level would be an ECP, such as the subject project. The hierarchy of EIA document type, based on comprehensiveness and detail of the study or report contained therein, insofar as single projects are concerned, is as follows:
1. Environmental Impact Statement166 (EIS),
2. Initial Environmental Examination167 (IEE) Report,
3. Initial Environmental Examination168 (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan169 (EPRMP), and
5. Project Description170 (PD) or Project Description Report (PDR).
Thus, in the course of RP Energy’s application for anECC, it was required by the DENR-EMB to submit an EIS because the subject project is: an ECP, new and a single project.
The present controversy, however, revolves around, not an application for an ECC, but amendments thereto.
RP Energy requested the subject first amendment to its ECC due to its desire to modify the project design through the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined that this was a major amendment and, thus, required RP Energy to submit an EPRMP.
The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct EIA document type based on the definition of an EPRMP in DAO 2003-30 and the Revised Manual.
In DAO 2003-30, an EPRMP is defined as:
Environmental Performance Report and Management Plan (EPRMP) — documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECC's, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice;171 (Emphasis supplied)
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for "A-2: Existing and to beexpanded (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion) and A-3: Operating without ECC."
On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document type, thus:
For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for projects operating without an ECCbut applying to secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project’s environmental performance and its current Environmental Management Plan. This report isx x x anx x x Environmental Performance Report and Management Plan (EPRMP) for single project applications x x x172 (Emphasis supplied)
In its "Glossary," the Revised Manual defines an EPRMP as:
Environmental Performance Report and Management Plan (EPRMP) - documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECCs.173 (Emphasis supplied)
Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-B: Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC."
From these definitions and tables, an EPRMP is, thus, the required EIA document type for an ECP-single project which is:
1. Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion);
2. Operating but without ECCs;
3. Operating projects with previous ECCs but planning or applying for clearance to modify/expand orre-start operations; and
4. Existing projects for modification or re-start up.
It may be observed that, based from the above, DAO2003-30 and the Revised Manual appear to use the terms "operating"and "existing" interchangeably. In the case at bar, the subject project has not yet been constructed although there have been horizontal clearing operations at the project site.
On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court — that the EPRMP is not the appropriate EIA document type— seems plausible because the subject project is not: (1) operating/existing with a previous ECC but planning or applying for modification or expansion, or (2) operating but without an ECC. Instead, the subject project is an unimplemented or a non-implemented, hence,non-operating project with a previous ECC but planning for modification or expansion.
The error in the above theory lies in the failure to consider or trace the applicable provisions of DAO 2003-30 and the Revised Manual on amendments to an ECC.
The proper starting point in determining the validity of the subject first amendment, specifically, the propriety of the EIA document type (i.e., EPRMP) which RP Energy submitted in relation to its application for the aforesaid amendment, must of necessity be the rules on amendments to an ECC.174 This is principally found in Section 8.3,Article II of DAO 2003-03, viz:
8.3 Amending an ECC
Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the information necessary to assess the environmental impact of such changes.
8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC requirements shall be decided upon by the endorsing authority.
8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.
8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application shall not exceed thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60) working days. Provisions on automatic approval related to prescribed timeframes under AO 42 shall also apply for the processing of applications to amend ECCs. (Emphasis supplied)
Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2, paragraph 16:
16) Application Process for ECC Amendments
Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs. Annex 2-1c provides a decision chart for the determination of requirements for project modifications, particularly for delineating which application scenarios will require EPRMP (which will be subject to Figure 2-1 process) or other support documentations (which will be subject to Figure 2-4 process). Figure 2-4, in turn, provides:
Figure 2-4. Flowchart on Request for ECC Amendments175
|
Scenario 1: Request for Minor Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed
"minor" at the discretion of the
EMB CO/RO Director |
Scenario 2: Request for Major Amendments
1. Expansion of project area w/in catchment described in EIA
2. Increase in production capacity or auxiliary component of the original project
3. Change/s in process flow or technology
4. Addition of new product
5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed "major" at the discretion of the EMB CO/RO Director |
| 1 [Start] |
1[Start] |
|
Within three (3) years from ECC issuance (for projects not started)176 OR at any time during project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a LETTER-REQUEST for ECC amendment, including data/information, reports or documents to substantiate the requested revisions.
2 |
Within three (3) years from ECC issuance (for projects not started)177 OR at any time during project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a LETTER-REQUESTfor ECC amendments, including data/information, reports or documents to substantiate the requested revisions. |
| 2 |
|
For projects that have started implementation, EMB evaluates request based on Annex 2-1cfor various scenarios of project modification. Documentary requirements may range from a Letter-Request to an EPRMP to the EMB CO/RO while for those with Programmatic ECC, a PEPRMP may need to be submitted to the EMB CO to support the request. It is important to note that for operating projects, the appropriate document is not an EIS but an EIA Report incorporating the project’s historical environmental performance and its current EMP, subject to specific documentary requirements detailed in Annex 2-1cfor every modification scenario.
3
|
|
The ECC-endorsing EMB office assigns a Case Handler to evaluate the request |
For EPRMP/PEPRMP-based requests, EMB forms a Technical/Review Committee to evaluate the request. For other requests, a Case Handler may solely undertake the evaluation. EMB CO and RO will process P/EPRMP for PECC/ECC under Groups I and II respectively. (Go to Figure 2-1) |
3
|
4
|
|
ECC-endorsing Authority decides on the Letter-Request, based on CH recommendation |
ECC-endorsing/issuing Authority (per Table 1-4) decides on Letter Requests/EPRMP/PEPRMP/Other documents based on EMB CH and/or Tech/Review Committee recommendations. |
|
Maximum Processing Time to Issuance of Decision |
Max Processing Time to Issuance of Decision |
|
EMB CO |
7 workdays |
CO PEPRMP |
CO EPRMP |
RO PEPRMP |
RO EPRMP |
|
EMB RO |
7 workdays |
120
workdays |
90
workdays |
60
workdays |
30
workdays |
| |
Other document applications: max 30 workdays (EMB CO and RO) |
| |
Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process squarely applies to projects not started, such as the subject project, based on the phrase "[w]ithin three (3) years from ECC issuance (for projects not started) x x x".
Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements For Project Modification." We reproduce below the first three columns of Annex 2-1c, as are pertinent to the issue at hand:
ANNEX 2-1c
DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION178
|
Proposed Modifications to the Current Project |
Analysis of Proposed Modifications |
Resulting Decision Document/Type of EIA Report Required |
|
Operational projects, or those which have stopped for ≤5 years and plan to re-start |
|
For Groups I and II EISbased Projects with an ECC applying for modification |
1. |
Expansion of land/project area w/in catchment or environment described in the original EIA Report |
Since the modification will be in an area already described and evaluated in the original EIA Report, incremental impacts from additional land development will have been addressed in the approved EMP |
ECC Amendment /Letter Request with brief description of activities in the additional area |
2. |
Expansion of land/project area OUTSIDE catchment or environment described in the original EIA Report |
It is assumed the modification proposal may have significant potential impacts due to absence of prior assessment as to how the project may affect the proposed expansion area |
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP) |
3. |
Increase in capacity or auxiliary component of the original project which will eithernot entail exceedance of PDR (non-covered project) thresholds or EMP & ERA can still address impacts & risks arising from modification |
Non-exceedance of PDR (non covered project) threshold is assumed that impacts are not significant;
Modification scenario and decision process are applicable to both nonimplemented and operating projects issued ECCs |
ECC Amendment /Letter Request with brief description of additional capacity or component |
4. |
Increase in capacity or auxiliary component of the original project which will either exceed PDR (noncovered project) thresholds, or EMP & ERA cannot address impacts and risks arising from modification |
Exceedance of PDR (non-covered) threshold is assumed that impacts may be potentially significant, particularly if modification will result to a next higher level of threshold range
Modification scenario and decision process are applicable to both nonimplemented and operating projects with or without issued ECCs |
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP) |
|
5. |
Change/s in process flow or technology |
EMP and ERA can still address impacts & risks arising from modification |
ECC Amendment /Letter Request with brief process description |
|
EMP and ERA cannot address impacts & risks arising from modification |
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP) |
6. |
Additional component or products which will enhance the environment (e.g. due to compliance to new stringent requirements) or lessen impacts on the environment (e.g. thru utilization of waste into new products) |
Activity is directly lessening or mitigating the project’s impacts on the environment. However, to ensure there is no component in the modification which fall under covered project types, EMB will require disclosure of the description of the components and process with which the new product will be developed. |
ECC Amendment /Letter Request with consolidated Project Description Report of new project component and integrated EMP |
7. |
Downgrade project size or area or other units of measure of thresholds limits |
No incremental adverse impacts; may result to lower project threshold or may result to non-coverage |
From ECC Amendment to Relief of ECC Commitments (Conversion to CNC): /Letter-Request only |
8. |
Conversion to new project type (e.g. bunker-fired plant to gas-fired) |
Considered new application but with lesser data requirements since most facilities are established; environmental performance in the past will serve as baseline; However, for operating projects, there may be need to request for Relief from ECC Commitment prior to applying for new project type to ensure no balance of environmental accountabilities from the current project |
New ECC /EIS |
9. |
Integration of ECCs for similar or contiguous projects
(Note: Integration of ECCs is at the option of the Proponent to request/apply) |
No physical change in project size/area; no change in process/technology but improved management of continuous projects by having an integrated planning document in the form or an integrated ECC (ECC conditions will be harmonized across projects; conditions relating to requirements within other agencies’ mandates will be deleted) |
ECC Amendment /Letter Request with consolidated Project Description Report and integrated EMP |
10. |
Revision/ Reformatting of ECC Conditions |
No physical change on the project but ECC conditions relating to requirements within other agencies’ mandates will be deleted |
ECC Amendment /Letter Request only |
We now apply these provisions to the case at bar.
To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned change of project design involving the inclusion of a barge wharf, seawater intake breakwater, subseadischarge pipeline, raw water collection system, drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined179 that the proposed modifications involved a major amendment because it will result in anincrease in capacity or auxiliary component, as per Scenario 2,Item #2 of Figure 2-4:
Scenario 2: Request for Major Amendments
1. Expansion of project area w/in catchment described in EIA
2. Increase in production capacity or auxiliary component of the original project180
3. Change/s in process flow or technology
4. Addition of new product
5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
6. Revision/Reformatting of ECC Conditions
7. Other amendments deemed "major at the discretion of the EMB CO/RO Director
The Casiño Group does not controvert this finding by the DENR-EMB and we find the same reasonably supported by the evidence on record considering that, among others, the construction of a 230-kVdouble transmission line would result in major activities outside the project site which could have significant environmental impacts.
Consequently, the amendment was considered asfalling under Item#4 of Annex 2-1c, and, thus, the appropriate EIA document typeis an EPRMP, viz:
|
4. |
Increase in capacity or auxiliary component of the original project which will either exceed PDR (non-covered project) thresholds, or EMP & ERA cannot address impacts and risks arising from modification |
Exceedance of PDR (non-covered) thresholds is assumed that impacts may be potentially significant, particularly if modification will result to a next higher level of threshold range
Modification scenario and decision process are applicable to both nonimplemented and operating projects with or without issued ECCs181 |
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)182 |
Note that the Chart expressly states that, "[m]odification scenario and decision process are applicable to both non-implementedand operating projects withor without ECCs."183 To recall, the subject project has not been constructed and is not yet operational, although horizontal clearing activities have already been undertaken at the project site. Thus, the subject project may be reasonably classified as a non-implemented project with an issued ECC, which falls under Item#4 and, hence, an EPRMP is the appropriate EIA document type.
This lengthy explanation brings us toa simple conclusion. The definitions in DAO 2003-30 and the Revised Manual, stating that the EPRMP is applicable to (1) operating/existing projectswith a previous ECC but planning or applying for modification or expansion, or (2) operating projects but without an ECC, were not an exclusive list.
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the EPRMP can, likewise, be used as an appropriate EIA document type for a single, non-implemented project applying for a major amendment to its ECC, involving an increase in capacity or auxiliary component, which will exceed PDR (non-covered project) thresholds, or result in the inability of the EMP and ERA to address the impacts and risks arising from the modification, such as the subject project.
That the proposed modifications in the subject project fall under this class or type of amendment was a determination made by the DENR-EMBand, absent a showing of grave abuse of discretion, the DENR-EMB’s findings are entitled to great respect because it is the administrative agency with the special competence or expertise to administer or implement the EIS System. The apparent confusion of the Casiño Group and the appellate court is understandable. They had approached the issue with a legal training mindset or background. As a general proposition, the definition of terms in a statute or rule is controlling as to its nature and scope within the context of legal or judicial proceedings. Thus, since the procedure adopted by the DENR-EMB seemed to contradict or go beyond the definition of terms in the relevant issuances, the Casiño Group and the appellate court concluded that the procedure was infirm.
However, a holistic reading of DAO2003-30 and the Revised Manual will show that such a legalistic approach inits interpretation and application is unwarranted. This is primarily because the EIA process is a system, not a set of rigid rules and definitions. In the EIA process, there is much room for flexibility in the determination and use ofthe appropriate EIA document type as the foregoing discussion has shown.184 To our mind, whatshould be controlling is the guiding principle set in DAO 2003-30 in the evaluation of applications for amendments to ECCs, as stated in Section 8.3 thereof: "[r]equirements for processing ECC amendments shall depend on the nature of the requestbut shall be focused on theinformation necessary to assess the environmental impact of such changes."185
This brings us to the next logicalquestion, did the EPRMP provide the necessary information in order for the DENR-EMB to assess the environmental impact of RP Energy’s request relative to the first amendment?
We answer in the affirmative.
In the first place, the Casiño Group never attempted to prove that the subject EPRMP, submitted by RP Energy to the DENR-EMB, was insufficient for purposes of evaluating the environmental impact of the proposed modifications to the original project design. There is no claim that the data submitted were falsified or misrepresented. Neither was there an attempt to subpoena the review process documents of the DENR to establish thatthe grant of the amendment to the ECC was done with grave abuse of discretion or to the grave prejudice of the right to a healthful environment of those who will beaffected by the project. Instead, the Casiño Group relied solely on the definition of terms in DAO 2003-30 and the Revised Manual, which approach, as previously discussed,was erroneous.
At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy and wefind therein substantial sections explaining the proposed changes as well as the adjustments that will be made in the environmental management plan in order to address the potential environmental impacts of the proposed modifications to the original project design. These are summarized in the "Project Fact Sheet"186 of the EPRMP and extensively discussed in Section 4187 thereof. Absent any claim or proof to the contrary, we have no bases to conclude that these data were insufficient to assess the environmental impact of the proposed modifications. In accordance with the presumption of regularity in the performance of official duties, the DENR-EMB must be deemed to have adequately assessed the environmental impact of the proposed changes, before granting the request under the first amendment to the subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document type, for major amendments to an ECC, even for an unimplemented or non-implementedproject with a previous ECC, such as the subject project. Consequently, we find that the procedure adopted by the DENR, in requiring RP Energy to submitan EPRMP in order to undertake the environmental impact assessment of the planned modifications to the original project design, relative to the first amendment to the ECC, suffers from no infirmity.
We apply the same framework of analysis in determining the propriety of a PDR, as the appropriate EIA document type, relative to the second amendment to the subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the definitions of a PDR in DAO 2003-30 and the Revised Manual:
Project Description (PD) — document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction, construction, operation and abandonment phases. It is tobe used for reviewing co-located and single projects under Category C, aswell as for Category D projects.188
x x x x
a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project Description Report (PDR) is the appropriate document to secure a decision from DENR/EMB. The PDR is a "must" requirement for environmental enhancement and mitigation projects in both ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign nature of proposed operations for eventual issuance of a Certificate ofNon-Coverage (CNC). All other Group III (non-covered) projects do not need to submit PDRs – application is at the option of the Proponent should it need a CNC for its own purposes, e.g. financing pre-requisite. For Group V projects, a PDR is required to ensure new processes/technologies or any new unlisted project does not pose harm to the environment. The Group V PDR is a basis for either issuance of a CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for projects operating without an ECC but applying to secure oneto comply with PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project’s environmental performance and its current Environmental Management Plan. This report is either an (6) Environmental Performance Report and Management Plan (EPRMP) for single project applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project applications. However, for small project modifications, an updating of the project description or the Environmental Management Plan with the use of the proponent’s historical performance and monitoring records may suffice.189
x x x x
Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction, construction, operation and abandonment phases.190
We will no longer delve intothe details of these definitions. Suffice it to state, similar to the discussion on the EPRMP, that if we go by the strict limits of these definitions, the PDR relative to the subject second amendment would not fall squarely under any of the above.
However, again, these are not the only provisions governing the PDR in the Revised Manual.
After the favorable grant of the first amendment, RP Energy applied for another amendment to its ECC, this time inconsideration of its plan to change the configuration of the project from 2 x 150 MWto 1 x 300 MW. In practical terms, this meant that the subject project will still produce 300 MW of electricity but will now make use of only one boiler (instead of two) to achieve greater efficiency in the operations of the plant. The DENR-EMB determined191 this amendment to be minor, under Scenario 1, Item#6 of Figure 2-4:
Scenario 1: Request for Minor
Amendments
1. Typographical error
2. Extension of deadlines for submission of post-ECC requirement/s
3. Extension of ECC validity
4. Change in company name/ownership
5. Decrease in land/project area or production capacity
6. Other amendments deemed "minor" at the discretion of the EMB CO/RO Director192
— because (1) there is no increase in capacity; (2) it does not constitute any significant impact; and (3) its EMP and ERA as specified in the submitted EPRMP remain the same.193 Relative to Annex 2-1c, the requested amendment was, in turn, determinedto fall under Item#3:
| 3. |
Increase in capacity or auxiliary component of the original project which will either not entail exceedance of PDR (non-covered project) thresholds or EMP & ERA can still address impacts & risks arising from modification |
Non-exceedance of PDR (non covered project) thresholds is assumed that impacts are not significant;
Modification scenario and decision process are applicable to both non-implemented and operating projects issued ECCs194 |
ECC Amendment /Letter Request with brief description of additional capacity or component195 |
We make the same observation, as before, that the above applies to an unimplemented or non-implemented project with a previous ECC, like the subject project. Although it may be noted thatthe proposed modification does not squarely fall under Item#3, considering that, as previously mentioned,there will be no increase in capacity relative to the second amendment, still, we find nothing objectionable to this classification by the DENR-EMB, for it seems plain enough that this classification was used because the modification was deemed too minor to require a detailed project study like an EIS or EPRMP. Since this is the classification most relevant and closely related to the intended amendment, following the basic precept that the greater includes the lesser, the DENR-EMB reasonably exercised its discretion in merely requiring a letter request with a brief description of the modification.
As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable to such minor modifications. Thus, the DENR-EMB cannot be faulted for requiring RPEnergy to submit a PDR relative to its application for the second amendment. Consequently, as before, we findthat the Revised Manual supports the procedure adopted by the DENR-EMB in requiring RP Energy to submit a PDR in order to assess the environmental impact of the planned modifications relative to the second amendment.
In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is nothing in the Project Description Report that provides an environmental impact assessment of the effects of constructing and operating a single 300-MW generating unit."196 However, to our dismay, as in their other serious allegations in their Petition for Writ ofKalikasan, the same is, likewise, baseless. Apart from such a sweeping claim, the Casiño Group has provided no evidence or argument to back up the same.
An examination of the PDR readily reveals that it contains the details of the proposed modifications197 and an express finding that no significant environmental impact will be generated bysuch modifications, as in fact it is expected that the operation of the power plant will become more efficient as a result of the change from 2 x 150 MW to 1 x 300 MW configuration.198 Consequently, the PDR merely reiterates the same mitigating measures that will presumably address the minor modifications to the project design. Again, no evidence was presented to show substantial errors or misrepresentations in these data or their inadequacy for providing the bases for the DENR-EMB to assess the environmental impact of the proposed modifications under the second amendment.
In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain the procedure adoptedby the DENR-EMB in requiring RP Energy to submit a PDR and, on the basis thereof, approving the request for the second amendment.
In another vein, we note that the appellate court proceeded from the erroneous premise that the EIA is a document, when it repeatedly stated that the amendments to the ECC require a new EIA, and not merely an EPRMP or PDR. The appellate court relied on the provisoin the ECC, which stated that "[a]ny expansion of the project beyond the project description or any change in the activity or transfer of location shall besubject to a new Environmental Impact Assessment."199
However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document but a process:
Environmental Impact Assessment (EIA) — processthat involves evaluating and predicting the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community's welfare.The process is undertaken by, among others, the project proponent and/orEIA Consultant, EMB, a Review Committee, affected communities and other stakeholders.200 (Emphasis supplied)
When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this simply means that the project proponent shall be required to submit such study or report, as warranted by the DENR Rules and circumstances, which will sufficiently aid the DENR in making a new EIA and, thus, determine whether to grant the proposed amendment (or project modification). Aswe have seen, consistent with DAO 2003-30 and the Revised Manual, the DENR required RP Energy to submit an EPRMP and a PDR relative to the latter’s request involving the first and second amendments, respectively, which led to the new EIA of the project in compliance with the provisoof the ECC.
Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the DENR to assess the environmental impact of a particular project. These documents are flexibly used by the DENR, as the circumstances warrant, in order to adequately assess the impacts of a new project or modifications thereto. Being the administrative agency entrusted with the determination of which EIA document type applies to a particular application for an amendment to an ECC, falling as it does within its particular technical expertise, wemust accord great respect to its determination, absent a showing of grave abuse of discretion or patent illegality.
In sum, we find that the appellate court erred when it ruled that the first and second amendments to the subject ECC wereinvalid for failure to comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. The appellate court failed to properly consider the applicable provisions in DAO 2003-30 and the Revised Manual on amendments to ECCs. Our examination of the provisions on amendments to ECCs, as well as the EPRMP and PDR themselves, shows that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first and second amendments, respectively. Through these documents, which the DENR reviewed, a new EIA was conducted relative to the proposed project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent illegality, relative to both the procedure and substance of the amendment process, we uphold the validity of these amendments.
IV.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the issuance of anECC and the lack of its prior issuance rendered the ECC invalid.
The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is invalid because the CNO covering the subject project was issued only on October 31, 2012 or almost fouryears from the timeof issuance of the ECC. Thus, the ECC was issued in violation of Section 59 of the IPRA Law and its implementing rules which require that a CNO be obtained prior to the issuance of a government agency of, among others, a license or permit. In so ruling, the appellate court implicitly upheld the Casiño Group’s argument that the ECC is a form of government license or permit pursuant to Section 4 of PD 1586 which requires all entities to securean ECC before (1) engaging in an environmentally critical project or (2) implementing a project within an environmentally critical area.
The DENR and RP Energy, however, argue that an ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules as may be deduced from the definition, nature and scope of an ECC under DAO 2003-03 and the Revised Manual. The DENR explains that the issuance of an ECC does not exempt the project proponent from securing other permits and clearances as required under existing laws, including the CNO, and that the final decision on whether a project will be implemented lies with the concerned local government unit/s or the lead government agency which has sectoral mandate to promote the government programwhere the project belongs.
We agree with the DENR and RP Energy.
Section 59, Chapter VIII of the IPRA Law provides:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession,license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain.Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process. (Emphasis supplied)
While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP) Administrative Order No. 01-98201 states:
SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses. —
a. Need for Certification. No department of government or other agencies shall issue, renew or grant anyconcession, license, lease, permit, or enter into any production sharing agreement without a prior certification from the NCIP that the area affected does not overlap any ancestral domain.
b. Procedure for Issuance ofCertification by NCIP.
1) The certification, above mentioned, shall be issued by the Ancestral Domain Office, only after a field based investigation that such areas are not within any certified or claimed ancestral domains.
2) The certification shall be issued only upon the free, prior, informed and written consent of the ICCs/IPs who will be affected by the operation of such concessions, licenses or leases or production-sharing agreements. A written consent for the issuance of such certification shall be signed by at least a majority of the representatives of all the households comprising the concerned ICCs/IPs. (Emphasis supplied)
As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the issuance of any concession, license, lease or agreement over natural resources, a certification issued by the NCIP that the area subject thereof does not lie within any ancestral domain.202 This is in keeping with the State policy to protect the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in order to ensure their economic, social and cultural well-being as well as to recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of such ancestral domain.203
The IPRA Law and its implementing rules do not define the terms "license" and "permit" so that resort to their plain or ordinary meaning in relation to the intendment of the law is appropriate.
A "license" has been defined as "a governmental permission to perform a particular act (such as getting married), conduct a particular business or occupation, operate machinery or vehicles after proving capacity and ability to do so safely, or use property for a certain purpose"204 while a "permit" has been defined as "a license or other document given by an authorized public official or agency (building inspector, department ofmotor vehicles) to allow a person or business to perform certain acts."205
The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or permit, is to prevent the implementation of a project that may impair the right of ICCs/IPs to their ancestral domains. The law seeks to ensure that a project willnot overlap with any ancestral domain prior to its implementation and thereby pre-empt any potential encroachment of, and/or damage to the ancestral domains of ICCs/IPs without their prior and informed consent.
With these considerationsin mind, we now look atthe definition, nature and scope of an ECC in order to determine if it falls within the ambit of a "license" or "permit" to which the CNO requirement, under Section 59 of the IPRA Law and its implementing rules, finds application. Section 4 of PD 1586 provides, in part:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any suchdeclared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President orhis duly authorized representative.For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their specific functionsand responsibilities. (Emphasis supplied)
While the above statutory provision reveals that the ECC is an indispensable requirement before (1) the conduct of an environmentally critical project or (2) the implementation of a project inan environmentally critical area, it does not follow that the ECC is the "license" or "permit" contemplated under Section 59 of the IPRA Law and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:
SECTION 3. Definition of Terms. —
For the purpose of this Order, the following definitions shall be applied:
x x x x
d. Environmental Compliance Certificate (ECC) — document issued by the DENR/EMB after a positive review of an ECC application, certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant negative environmental impact. The ECC also certifies that the proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan. The ECC contains specific measures and conditions that the project proponent has to undertake beforeand during the operation of a project, and in some cases, during the project's abandonment phase to mitigate identified environmental impacts.
In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:
3) Purpose of the EIA Process
As a basic principle, EIA is used to enhance planning and guide decisionmaking. In this Manual, EIA is primarily presented in the context of a requirement to integrate environmental concerns in the planning process of projects at the feasibility stage. Through the EIA Process, adverse environmental impacts of proposed actions are considerably reduced through a reiterative review process of project siting, design and other alternatives, and the subsequent formulation of environmental management and monitoring plans. A positive determination by the DENR-EMB results to the issuance of an Environmental Compliance Commitment (ECC) document, to be conformed to by the Proponent and represents the project’s Environmental Compliance Certificate. The release of the ECC allows the project to proceed to the next stage of project planning, which is the acquisition of approvals from other government agencies and LGUs, after which the project can start implementation.
x x x x
6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent upon the EIA Process to undertake a comprehensive and integrated approach in the review and evaluation of environment-related concerns of government agencies (GAs), local government units (LGUs) and the general public. The subsequent EIA findings shall provide guidance and recommendations to these entities as a basis for their decision making process.
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29 government agencies wherein ECC of covered projects was agreed to be a prerequisite of all other subsequent government approvals;
b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the intent of the MOA and reinforces the role of the ECC/CNC as a guidance document to other agencies and LGUs, as follows:
i) "No permits and/or clearances issued by other National Government Agencies and Local Government Units shall be required in the processing of ECC or CNC applications.
ii) The findings and recommendations ofthe EIA shall be transmitted to relevant government agencies for them to integrate in their decision making prior to the issuance of clearances, permits and licenses under their mandates.
iii) The issuance of an ECC or CNC for a project under the EIS System does not exempt the Proponent from securing other government permits and clearances as required by other laws. The current practice of requiring various permits, clearancesand licenses only constrains the EIA evaluation process and negates the purpose and function of the EIA."
iv) Henceforth, all related previous instructions and other issuances shall be made consistent with the Circular.
c) "Permits, licenses and clearances" are inclusive of other national and local government approvals such as endorsements, resolutions, certifications, plans and programs, which have to be cleared/approved or other government documents required within the respective mandates and jurisdiction of these agencies/LGUs.
x x x x
f) The final decision whether a project will be implemented or not lies either with the LGUs who have spatial jurisdiction over the project or with the lead government agency who has sectoral mandate to promote the government program where the project belongs, e.g. DOE for energy projects; DENR-MGB for mining projects.(Emphasis supplied)
As can be seen, the issuance of the ECC does not, by and of itself, authorize the implementation of the project. Although it is indispensable before the covered project can be commenced, asper Section 4 of PD 1586,the issuanceof the ECC does not, as of yet, result inthe implementation of the project. Rather, the ECC is intended to, among others, provide guidance or act as a decision-making tool to other government agencies and LGUs which have the final authority to grant licenses or permits, such as building permits or licenses to operate, that will ultimately result in, or authorize the implementation of the project or the conduct of specific activities.
As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not required to be obtained prior to the issuance of an ECC. As previously discussed, Section 59 aims to forestall the implementation of a project that may impair the right of ICCs/IPs totheir ancestral domains, by ensuring or verifying that a project will not overlap with any ancestral domain prior to its implementation. However, because the issuance of an ECC does not result in the implementation of the project, there is no necessity to secure a CNO prior to an ECC’s issuance as the goal orpurpose, which Section 59 seeks to achieve, is, at the time of the issuance of an ECC, not yet applicable.
In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules. Hence, there is no necessity to secure the CNO under Section 59 before an ECC may be issued and the issuance of the subject ECC without first securing the aforesaid certification does not render it invalid.
V.
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the consummation of the Lease and Development Agreement (LDA) between SBMA and RP Energy and the lack of its prior issuance rendered the LDA invalid.
We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into between the SBMA and RP Energy on June 8, 2010. Similar to the ECC, the LDA was entered into prior to the issuance ofthe CNO on October 31, 2012.
Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no longer necessary in the instant case, to wit:
1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease agreement with HHIC206 -Philippines, Inc. and a CNO was already issued therefor which, for all intents and purposes, is applicable to the area leased by RP Energy being part of contiguous lots in Redondo Peninsula.
2. The site of the power plant project is very distant from the boundaries of the lone area at the Subic Bay Freeport Zone covered by an Aeta Community’s Certificate of Ancestral Domain Title (CADT).
3. There was no indigenous community within the vicinity of the project area as stated in RP Energy’s EIS.
4. The land where the project is located was subsequently classified as industrial by the SBMA. 5. The scoping/procedural screening checklist classified as "not relevant" the issue of indigenous people.
6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she visited the project site ten or more times and did not see any Aeta communities there.
7. Mr. Evangelista testified that the project site used to be a firing range of the U.S. Armed Forces which would make it impossible to be a settlement area of indigenous communities.
8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the start of negotiations on the LDA, the SBMA Ecology Center verified with the NCIP that there was no application for said area to be covered by a CADT.
RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the NCIP. On October 31, 2012, the NCIP issued the subject CNO over the project site, which should erase any doubt as to whether it overlaps with an ancestral domain.
Upholding the arguments of the Casiño Group, the appellate court ruled that SBMA failed to comply with the CNO requirement and, thus, the LDA entered into between SBMA and RP Energy is invalid. It rejected the reasons given by SBMA and RP Energy, to wit:
1. RP Energy’s reliance on its own field investigation that no indigenous community was found within the vicinity is unavailing because it was not the field investigation by the NCIP required by the IPRA Law.
2. RP Energy acknowledged that Aetas were among the earliest settlers in the municipality where the project will be built. Hence, it was not clearly shown that in 2008, at the time the LDA was entered into, there were no indigenouscommunities in the project site.
3. SBMA’s representation that the project site is industrial relies on a letter dated March 5, 2008 and the scoping checklist, which are hearsay evidence.
4. The statements of Atty. Rodriguez have no probative value because he is not an officer of SBMA Ecology Center oran officer of NCIP.
5. At the time the CNO was issued on October 31, 2012, and the field investigation relative thereto was conducted by the NCIP, the project site no longer reflected the actual condition on December 22, 2008 when the LDA was entered into because the households which occupied the site had already been relocated by then.
6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly did not do the same with respect to the lease agreement with RP Energy, considering that both leases cover lands located within the same peninsula. RP Energy appears to have been accorded a different treatment.
7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant project because the two projects are situated in different locations: the HHIC project is located in Sitio Agusuhin,while the power plant project is located in Sitio Naglatore.
While we agree with the appellate court that a CNO should have been secured prior to the consummation of the LDA between SBMAand RP Energy, and not after, as was done here, we find that, under the particular circumstances of this case, the subsequent and belated compliance withthe CNO requirement does not invalidate the LDA.
For convenience, and as starting point of ouranalysis, we reproduce Section 59 of the IPRA Law below:
SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any productionsharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain.Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process. (Emphasis supplied)
The law is clear but its actual operation or application should not be interpreted beyond the bounds of reason or practicality.
We explain.
Indeed, a CNO is required prior to the grant of a lease by all government agencies, including the SBMA. Again, the evident intention is to prevent the impairment of the right of ICCs/IPs to their ancestral domains. A lease, such as the LDA under consideration, would result in, among others, granting RP Energy the right to the use and enjoyment of the project site to the exclusion of third parties.207 As such, the lease could conceivably encroach on an ancestral domain if the CNO is not first obtained.
However, implicit in the operation of Section 59 is the practical reality that the concerned government agency must make a preliminary determinationon whether or not to obtain the required certification in the first place. To expound, a government agency, which wishes to lease part of its property located near Padre Faura Street, Manila City could not, and should not be reasonably expected to obtain the CNO, as it is obviously inapplicable to its planned lease. In contrast, a government agency, which intends to lease a property in a valley or mountainous region, where indigenous communities are known to reside, conduct hunting activities, perform rituals, or carry out some other activities, should be reasonably expected to secure the CNO prior to consummating the planned lease with third persons.
Even if the indigenous community does not actuallyreside on the proposed lease site, the government agency would still be required to obtain the CNO preciselyto rule out the possibility that the proposed lease site encroaches upon an ancestral domain. The reason for this is that an ancestral domain does not only cover the lands actually occupied by an indigenous community, but all areas where they have a claim of ownership, through time immemorial use, such as hunting, burial or worship grounds and to which they have traditional access for their subsistence and other traditional activities.208
The wording of the law itself seems to presuppose that if the concession, lease, license or production-sharing agreement is over natural resources, then the CNO should be first obtained. This is because the lastterm, "production-sharing agreement," normally refers to natural resources. But the problem arises as to what should be considered "natural resources"; for a vacant lot, nearPadre Faura Street, or a forest land, in Mt. Banahaw, could both beconsidered as "natural resources," depending on the restrictive or expansive understanding of that term.
After due consideration, we find that the proper rule of action, for purposes of application of Section 59, is that all government offices should undertake proper and reasonable diligence in making a preliminary determination on whether to secure the CNO, bearing in mind the primordial State interest in protecting the rights of ICCs/IPs to their ancestral domains. They should consider the nature and location of the areas involved; the historical background of the aforesaid areas relative to the occupation, use or claim of ownership by ICCs/IPs; the present and actual condition of the aforesaid areas likethe existence of ICCs/IPs within the area itself or within nearby territories; and such other considerations that would help determine whether a CNO should be first obtained prior to granting a concession, lease, license or permit, or entering into a production-sharing agreement.
If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present or a claim of ownership may be asserted in the future, no matter how remote, the proper and prudent course ofaction is to obtain the CNO. In case of doubt, the doubt should be resolved in favor of securing the CNO and, thus, the government agency is under obligation tosecure the aforesaid certification in order to protect the interests and rights of ICCs/IPs to their ancestral domains. This must be so if we are to accord the proper respect due to, and adequately safeguard the interests and rights of, our brothers and sisters belonging to ICCs/IPs in consonance with the constitutional policy209 to promote and protect the rights of ICCS/IPs as fleshed out in the IPRA Law and its implementing rules.
In the case at bar, we find, applying this rule of action, that the SBMA should have first secured a CNO before entering into the LDA with RP Energy for the following reasons.
First, the Subic area is historicallyknown to be the home of our brothers and sisters belonging to the Aeta communities. In particular, the EIS210 itself of RP Energy noted that Aeta communities originally occupiedthe proposed project site of the power plant. Thus, even if we assume that, at the time of the ocular inspection of the proposed project site in 2008, there were no Aeta communities seen thereat, as claimed by RP Energy, the exercise of reasonable prudence should have moved SBMA and RP Energy to secure a CNO in order to rule out the possibility that the project site may overlap with an ancestral domain. This is especially so, in view of the observation previously made, that lack of actual occupation by an indigenous community ofthe area does not necessarily mean that it is not a part of anancestral domain because the latter encompasses areas that are not actually occupied by indigenouscommunities but are used for other purposes like hunting, worship or burial grounds.
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP that the project site does not overlap with an ancestral domain. However, the person, who allegedly did the verification, and the officer from the NCIP, who was contacted in this alleged verification, were not presented in court. Assuming that this verification did take place and that the SBMA Ecology Center determined that there is no pendingapplication for a CADT covering the project site and that the presently recognized CADT of Aeta communities is too far away from the project site, it still does not follow that the CNO under Section 59 should have been dispensed with. The acts of individual members ofa government agency, who allegedly checked with the NCIP that the project site does not overlap with an ancestral domain, cannot substitute for the CNO required by law. The reason is obvious. Such posture would circumvent the noble and laudable purposes of the law in providing the CNO as the appropriate mechanism in order to validly and officially determine whether a particular project site does not overlap with an ancestral domain. It would open the doors to abuse because a government agency can easily claim that it checked with the NCIP regarding any application for an ancestral domain over a proposed project site while stopping short of securing a CNO. To reiterate, the legally mandated manner to verify if a project site overlaps with an ancestral domain is the CNO,and not through personal verification by members of a government agency with the NCIP.
Third, that the project site was formerlyused as the firing range of the U.S. Armed Forces does not preclude the possibility that a present orfuture claim of ancestral domain may be made over the aforesaid site. The concept of an ancestral domain indicates that, even if the use ofan area was interrupted by the occupation of foreign forces, it may still be validly claimed to be an ancestral domain.211
Fourth, that the project site was subsequently classified by the SBMA as forming part of an industrial zone does not exempt it from the CNO requirement. The change in the classification of the land is not an exception to the CNO requirement under the IPRA Law. Otherwise, government agencies can easily defeat the rights of ICCs/IPs through the conversion of land use.
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be applicable to RP Energy. However, ascorrectly ruled by the appellate court, the CNO issued to HHIC’s shipyard cannot be extended to RP Energy’s project site because they involve two different locations although found within the same land mass. The CNO issued in favor of HHIC clearly states that the findings in the CNO are applicable only to the shipyard location of HHIC. Last, the steps taken by SBMA, in securing a CNO prior to its lease agreement with HHIC, was the proper and prudent course of action that should have been applied to the LDA with RP Energy. It does notmatter that HHIC itself asked for the CNO prior to entering into a lease agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a request because, as we have discussed, SBMA had the obligation, given the surrounding circumstances, to secure a CNO in order to rule out the possibility that the project site overlapped with an ancestral domain.
All in all, we find, applying the foregoing rule of action,that SBMA should have secured a CNO before entering into the LDA with RP Energy. Considering that Section 59 is a prohibitory statutory provision, a violation thereof would ordinarily result in the nullification of the contract.212 However, we rule that the harsh consequences of such a ruling should not be applied to the case at bar.
The reason is that this is the first time that we lay down the foregoing rule of action so much so that it would be inequitable to retroactively apply its effects with respect to the LDA entered into between SBMA and RPEnergy. We also note that, under the particular circumstances of this case, there is no showing that SBMA and RP Energy had a deliberate or ill intent to escape, defeat or circumvent the mandate of Section 59 of the IPRA Law. On the contrary, they appear to have believed in good faith, albeiterroneously, that a CNO was no longer needed because of the afore-discussed defenses they raised herein. When the matter of lack of a CNO relative to the LDA was brought to their attention, through the subject Petition for Writ ofKalikasan filed by the Casiño Group, RP Energy, with the endorsement of SBMA, promptly undertook to secure the CNO, which was issued on October 31, 2012 and stated that the project site does not overlap with any ancestral domain.213
Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP Energy acted inbad faith or with inexcusable negligence, considering that the foregoing rule of action has not heretofore been laiddown by this Court. As a result, we hold that the LDA should notbe invalidated due to equitable considerations present here.
By so ruling, we clarify that we reject RP Energy’s claim that the belated submission of the CNO is an "over compliance" on its part. Quite the contrary, as we have discussed, the CNO should have been first secured given the surrounding circumstances of this case.
In the same vein, we reject SBMA’s argument thatthe belated application for, and submission of the CNO cured whatever defect the LDA had. We have purposely avoided a ruling to the effect that a CNO secured subsequent to the concession, lease, license, permit or production-sharing agreement will cure the defect. Such a ruling would lead to abuse of the CNO requirement since the defect can be cured anyway by a subsequent and belated application for a CNO. Government agencies and third parties, either through deliberate intent or negligence, may view it as an excuse not to timely and promptly secure the CNO, even when the circumstances warrant the application for a CNO under the aforediscussed rule of action, tothe damage and prejudice of ICCs/IPs. Verily, once the concession, lease, license or permit is issued, or the agreement is entered into without the requisite CNO, consequent damages will have already occurred if it later turns out that the site overlaps with anancestral domain. This is so even if the ICCs/IPs can have the project stopped upon discovery thatit overlapped with their ancestral domain under the last proviso214 of Section 59. To prevent this evil, compliance with the CNO requirement should be followed through the aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation of the LDA between SBMA and RP Energy. However, considering that this is the first time we lay down the rule of action appropriate to the application of Section 59, we refrain from invalidating the LDA due to equitable considerations.
VI.
Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e., approval of the concerned sanggunianrequirement) is necessary prior to the implementation of the power plant project.
Sustaining the arguments ofthe Casiño Group, the appellate court ruled that the subject project cannot beconstructed and operated until after the prior approval of the concerned sanggunianrequirement, under Section 27 of the LGC, is complied with. Hence, the ECC and LDA could not be validly granted and entered into without first complying with the aforesaid provision. It held that all the requisites for the application of the aforesaid provision are present. As to the pertinent provisions of RA 7227 or "TheBases Conversion and Development Act of 1992," which grants broad powers of administration to the SBMA over the Subic Special Economic Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision recognizing the basic autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA 7227should be harmonized whereby the concerned sanggunian’spower to approve under Section 27 must be respected.
The DENR impliedly agrees with the Casiño Group that compliance with Section 27 is still required but without clearly elaborating its reasons therefor.
The SBMA and RP Energy, however, argue that the prior approval of the concerned sanggunianrequirement, under Section 27, is inapplicable to the subject project because it is located within the SSEZ. The LGC and RA 7227 cannot be harmonized because of the clear mandate of the SBMA to govern and administer all investments and businesses within the SSEZ. Hence, RA 7227 should be deemed as carving out an exception to the prior approval of the concerned sanggunianrequirement insofar as the SSEZ is concerned.
We agree with the SBMA and RP Energy.
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1) prior consultations and (2) prior approval of the concerned sanggunian,viz:
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. — It shall be the duty of every national agency or government-owned or -controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, non governmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the peopleand the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. (Emphasis supplied)
SECTION 27. Prior Consultations Required. — No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. (Emphasis supplied)
In the case at bar, the Casiño Group only questions the alleged lack of the prior approval of the concerned sanggunians under Section 27 of the LGC. Thus, we shall limit our discussion to the resolution of this issue. (Parenthetically, we note that prior consultations, as required by Section 26 of the LGC, appear to have been complied with. This may begleaned from the EIS of RPEnergy which contains the documentation of the extensive public consultations held, under the supervision of the DENR-EMB, relative to the subject project, as required by the EIA process,215 as well as the socialacceptability policy consultations conducted by the SBMA, which generated the document entitled "Final Report: Social Acceptability Process for RP Energy, Inc.’s 600-MW Coal Plant Project," as noted and discussed in an earlier subsection.216)
We also note that the Casiño Group argues that the approval of the concerned sanggunian requirement was necessary prior to the issuance of the ECC and the consummation of the LDA; the absence of which invalidated the ECC and LDA.
We shall no longer discuss at length whether the approval of the concerned sanggunian requirement must be complied with prior to the issuance of an ECC. As discussed in an earlier subsection, the issuance of an ECC does not, by itself, result in the implementation of the project. Hence, the purpose or goal of Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law, does not yet obtain and, thus, the ECC may be issued evenwithout prior compliance with Sections 26 and 27 of the LGC.
We, thus, limit the discussion as to whether the approval of the concerned sanggunian requirement should have been complied with prior to the consummation of the LDA, considering that the LDA is part of the implementation of the subject project and already vests in RP Energy the right to the use and enjoyment of the project site, asin fact horizontal clearing activities were already undertaken by RP Energy at the project site by virtue of the LDA.
The prior approval of the concerned sanggunian requirement is an attribute and implementation of the local autonomy granted to, and enjoyed by LGUs under the Constitution.217 The LGU has the duty to protect its constituents and interests in the implementation of the project. Hence, the approval of the concerned sanggunian is required by law to ensure thatlocal communities partake in the fruits of their own backyard.218
For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the planning and implementation of the project or program is vested in a national agency or government-owned and-controlled corporation, i.e., national programs and/or projects which are to be implemented in a particular local community; and (2) the project or program may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, extinction of animal or plant species, or call for the eviction of a particular group of people residing in the locality where the project will be implemented.219
In the case at bar, the two requisites are evidently present: (1) the planning and implementation of the subject project involves the Department of Energy, DENR, and SBMA; and (2) the subject project may cause pollution, climatic change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species,or call for the eviction of a particular group of people residing in the locality where the project will be implemented. Hence, Section 27 of the LGC should ordinarily apply.
It is not disputed that no approval was sought from the concerned sangguniansrelative to the subject project.1a\^/phi1 Whatis more, the affected LGUs have expressed their strong oppositions to the project through various sanggunian resolutions.220 However, it is also undisputed that the subject project is located within the SSEZ and, thus, under the territorial jurisdiction of the SBMA pursuant to RA 7227.
Thus, we are tasked to determine the applicability of the prior approval of the concerned sanggunian requirement, under Section 27 of the LGC, relative to a project within the territorial jurisdiction of the SBMA under RA 7227.
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and the closure of the Subic Naval Base ofthe U.S. Armed Forces. It sought to revivethe affected areas by creating and developing the SSEZ into a "self-sustaining industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments."221 The SSEZ covered the City of Olangapo and Municipality of Subic in the Province ofZambales and the lands and its contiguous extensions occupied by the former U.S. Naval Base, which traversed the territories of the Municipalities of Hermosa and Morong in the Province of Bataan. Under Section 12 of RA 7227, the creation of the SSEZ was made subject to the concurrence by resolution of the respective sanggunians of the City of Olongapo and the Municipalities of Subic, Morong and Hermosa, viz:
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of the sangguniang panlungsod of the City of Olongapo and the sangguniang bayanof the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of the Zone as provided herein.
Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence and the President issued Presidential Proclamation No. 532, Series of 1995, defining the metes and bounds of the SSEZ.
In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described the concept of SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or movement of goods and capital within a portion of the Philippine territory in order to attract investors to invest their capital in a business climate with the least governmental intervention. The concept ofthis zone was explained by Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is successful in many places, particularly Hong Kong, which is a free port. The difference between a special economic zone and an industrial estate is simply expansive in the sense that the commercial activities, including the establishment of banks, services, financial institutions, agro-industrial activities, maybe agriculture to a certain extent.
This delineates the activities that would have the least of government intervention, and the running of the affairs of the special economic zone would be run principally by the investors themselves, similar toa housing subdivision, where the subdivision owners elect their representatives to run the affairs of the subdivision, toset the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong, Mr. President, where there is a hub of free port and free entry, free duties and activities to a maximum spur generation of investment and jobs.
While the investor is reluctant to come in the Philippines, as a rule, because of red tape and perceived delays, we envision this special economic zone to be an area where there will be minimum government interference.
The initial outlay may not only come from the Government or the Authority as envisioned here, but from them themselves, because they would be encouraged to invest not only for the land but also for the buildings and factories. As long as they are convinced that in such an area they can do business and reap reasonable profits, thenmany from other parts, both local and foreign, would invest, Mr. President.223 (Emphasis in the original)
To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In the process, SBMA was granted broad and enormous powers as provided for under Section 13(b) of RA 7227:
Sec. 13. The Subic Bay Metropolitan Authority. –
x x x x
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise knownas the Subic Authority, shall have the following powers and function: (1) To operate, administer, manage and develop the ship repair and ship building facility, container port, oil storage and refueling facility and Cubi Air Base within the Subic Special Economic and Free-port Zone as a free market in accordance with the policies set forth in Section 12 of this Act;
(2) To accept any local or foreign investment, business or enterprise, subject only to such rules and regulations to be promulgated by the Subic Authority in conformity with the policies of the Conversion Authority without prejudice to the nationalization requirements provided for in the Constitution;
(3) To undertake and regulate the establishment, operation and maintenance of utilities, other services and infrastructure in the Subic Special Economic Zone including shipping and related business, stevedoring and port terminal services or concessions, incidental thereto and airport operations in coordination with the Civil Aeronautics Board, and to fix just and reasonable rates, fares charges and other prices therefor;
(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license permits bulk purchase from the private sector and build-operate transfer scheme or joint-venture the required utilities and infrastructurein coordination with local government units and appropriate government agencies concerned and inconformity with existing applicable laws therefor;
(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose, acquire and own properties; to sue and be sued in order to carry out its duties and functions as provided for in this Act and to exercise the power of eminent domain for public use and public purpose;
(6) Within the limitation provided by law, to raise and/or borrow the necessary funds from local and international financial institutions and to issue bonds, promissory notes and other securities for that purpose and to secure the same by guarantee, pledge, mortgage deed of trust, or assignment of its properties held by the Subic Authority for the purpose of financing its projects and programs within the framework and limitation of this Act;
(7) To operate directly or indirectly or license tourism related activities subject to priorities and standards set by the Subic Authority including games and amusements, except horse racing, dog racing and casino gambling which shall continue to be licensed by the Philippine Amusement and Gaming Corporation (PAGCOR) upon recommendation of the Conversion Authority; to maintain and preserve the forested areas as a national park;
(8) To authorize the establishment ofappropriate educational and medical institutions;
(9) To protect, maintain and develop the virgin forests within the baselands, which will be proclaimed as a national park and subject to a permanent total log ban, and for this purpose, the rules and regulations of the Department of Environment and Natural Resources and other government agencies directly involved in the above functions shall be implemented by the Subic Authority;
(10) To adopt and implement measures and standards for environmental pollution control of all areas within its territory, including but not limited to all bodies of water and to enforce the same. For which purpose the Subic Authority shall create an Ecology Center; and
(11) To exercise such powers as may be essential, necessary or incidental to the powers granted to it hereunder as well as to carry out the policies and objectives of this Act. (Emphasis supplied) The Implementing Rules of RA 7227 further provide:
Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in Section 10 of these Rules, the SBMA shall have the following responsibilities:
(a) The SBMA shall exercise authority and jurisdiction over all economic activity within the SBF224
x x x x
(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the law and these Rules in the SBF:
x x x x
(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or privilege allowed under the Act or these Rules;
x x x x
(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or incidental to carry out the policies and objectives of the Act, these Rules, as well as the powers and duties of the SBMA thereunder.225
As can be seen, the SBMA was given broad administrative powers over the SSEZ and these necessarily include the power to approve or disapprove the subject project, which is within its territorial jurisdiction. But, as previously discussed, the LGC grants the concerned sangguniansthe power to approve and disapprove this same project. The SBMA asserts that its approval of the project prevails over the apparent disapproval of the concerned sanggunians. There is, therefore, a real clash between the powers granted under these two laws.
Which shall prevail?
Section 12 of RA 7227 provides:
Sec. 12. Subic Special Economic Zone. x x x
The abovementioned zone shall be subjected to the following policies:
(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall bedeveloped into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments;
x x x x
(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991. (Emphasis supplied)
This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted by the appellate court, Section 12(i) expressly recognizes the basic autonomy and identity of the LGUscomprising the SSEZ. However, the clause "[e]xcept as herein provided" unambiguously provides that the LGUs do not retain their basic autonomy and identitywhen it comes to matters specified by the law as falling under the powers, functions and prerogatives of the SBMA.
In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is one such power over which the SBMA’s authority prevails over the LGU’s autonomy. Hence, there isno need for the SBMA to secure the approval of the concerned sangguniansprior to the implementation of the subject project.
This interpretation is based on the broad grant of powers to the SBMA over all administrative matters relating to the SSEZ under Section 13 of RA 7227, as afore-discussed. Equally important, under Section 14, other than those involving defense and security, the SBMA’s decision prevails in case of conflict between the SBMA and the LGUs in all matters concerning the SSEZ, viz.:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units.
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zonein conformity with the oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the Subic Special Economic Zone other than defense and security, the decision of the SubicAuthority shall prevail. (Emphasis supplied)
Clearly, the subject project does not involve defense or security, but rather business and investment to further the development of the SSEZ. Such is in line with the objective of RA 7227 to develop the SSEZ into a self-sustaining industrial, commercial, financial and investment center. Hence, the decision of the SBMA would prevail over the apparent objections of the concerned sanggunians of the LGUs.
Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the foregoing interpretation. As earlier noted, Section 13 b(4) of RA 7227 provides:
Sec. 13. The Subic Bay Metropolitan Authority. –
x x x x
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise knownas the Subic Authority, shall have the following powers and function: x x x x
(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license permits bulk purchase from the private sector and build-operate transfer scheme or joint-venture the required utilities and infrastructure in coordination with local government units and appropriate government agencies concerned and in conformity with existing applicable laws therefor;
In the Senate, during the period of amendments, when the provision which would eventually become the afore-quoted Section 13 b(4) of RA 7227 was under consideration, the following exchanges took place:
Senator Laurel. Mr. President.
The President. Senator Laurel is recognized.
Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the effect that the Authoritywill have the following functions: "to construct, acquire, own, etcetera," that is all right.
My motion is that we amend this particular line, starting from the word "structures", by deleting the words that follow on line 31, which states: "in coordination with local government unitsand", and substitute the following in place of those words: "SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN COORDINATION WITH."
So, this paragraph will read, as follows: "to construct, own, lease, operate, and maintain on its own or through contract, franchise, license permits, bulk purchase from the private sector and build-operate-transfer scheme or joint venture the required utilities and infrastructure SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN coordination with appropriate government agencies concerned and in conformity with existing applicable laws therefor."
The President. What does the Sponsor say?
Senator Shahani. I believe this would cripple the Authority. I would like to remind our Colleagues that in the Board of Directors, the representatives of the local government units that agree to join with the Subic Special Economic Zone will be members of the Board so that they will have a say, Mr. President. But if we say "subject," that is a very strong word. It really means that they will be the ones to determine the policy.
So, I am afraid that I cannot accept this amendment, Mr. President.
Senator Laurel. May I respond or react, Mr. President.
The President. Yes.
Senator Laurel. The Constitution is there,very categorical inthe promotion and encouragement of local autonomy, and mandating Congress to enact the necessary Local Government Code with emphasis on local autonomy.
We have now Section 27 of the new Local Government Code which actually provides that for every projectin any local government territory, the conformity or concurrence of the Sanggunian of every such local government unit shall be secured in the form of resolution—the consent of the Sanggunian.
The President. Well, both sides have already been heard. There is the Laurel amendment that would make the power of the Subic Bay Metropolitan Authority to construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license, permits, bulk purchases from private sector, buildoperate-and-transfer scheme, or joint venture, the required utilities and infrastructure, subject to approval by the appropriate Sanggunian of the local government concerned.
This amendment to the amendment has been rejected by the Sponsor. So, we are voting now on this amendment.
As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)
Those who are against the said amendment, say Nay. (Several Senators: Nay.)
Senator Laurel. Mr. President, may I ask for a nominal voting.
The President. A nominal voting should beupon the request of one-fifth of the Members of the House, but we can accommodate the Gentleman by asking for a division of the House. Therefore, those in favor of the Laurel amendment, please raise their right hands. (Few Senators raised their right hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A nominal voting can be had only upon motion ofone-fifth of the Members of the Body. Senator Laurel. That is correct, Mr. President. But this issuch an important issue being presented to us, because this question is related to the other important issue, which is: May an elected public official of a particular government unit, such as a town or municipality, participate as a member of the Board of Directors of this particular zone.
The President. The ruling of the Chair stands. The division of the House is hereby directed.
As many as are infavor of the Laurel amendment, please raised (sic) their right hands. (Few Senators raised their right hands.)
As many as are against the said amendment, please do likewise. (Several Senators raised their right hands.)
The amendment is lost.226 (Emphasis supplied)
Indubitably, the legislature rejected the attempts to engraft Section 27’s prior approval of the concerned sanggunian requirement under the LGC into RA 7227. Hence, the clear intent was to do awaywith the approval requirement of the concerned sangguniansrelative to the power ofthe SBMA to approve or disapprove a project within the SSEZ.
The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:
TITLE VIII.
Autonomous Special Economic Zones
SECTION 117. Establishment of Autonomous Special Economic Zones. — The establishment by law of autonomous special economic zones in selected areas of the country shall be subject to concurrence by the local government units included therein.
When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this would lead to some diminution of their local autonomy in order to gain the benefits and privileges of being a part of the SSEZ.
Further, the point of Senator Shahani that the representation of the concerned LGUs in the Board of Directors will compensate for the diminution of their local autonomy and allow them to be represented in the decision-making of the SBMA is not lost on us. This is expressly provided for in Section 13(c) of RA 7227, viz:
SECTION 13. The Subic Bay Metropolitan Authority. —
x x x x
(c) Board of Directors. — The powers of the Subic Authority shall be vested in and exercised by a Board of Directors, hereinafter referred to as the Board, which shall be composed of fifteen (15) members, to wit:
(1) Representatives of the local government units that concur to join the Subic Special Economic Zone;
(2) Two (2) representatives from the National Government;
(3) Five (5) representatives from the private sector coming from the present naval stations, public works center, ship repair facility, naval supply depot and naval air station; and
(4) The remaining balance to complete the Board shall be composed of representatives from the business and investment sectors. (Emphasis supplied)
SBMA’s undisputed claim is that, during the board meeting when the subject project was approved, exceptfor one, all the representatives of the concerned LGUs were present and voted to approve the subject project.227 Verily, the wisdom of the law creating the SSEZ; the wisdom of the choice of the concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of representation of the concerned LGUs in the decision-making process of the SBMA are matters outside the scope of the power of judicial review. We can only interpret and apply the law as we find it.
In sum, we find that the implementation of the project is not subject to the prior approval of the concerned sanggunians, under Section 27 of the LGC, and the SBMA’s decision to approve the project prevails over the apparent objections of the concerned sangguniansof the LGUs, by virtue ofthe clear provisions of RA 7227. Thus, there was no infirmity when the LDA was entered into between SBMA and RP Energy despite the lack of approval of the concerned sanggunians. VII.
Whether the validity of the third amendment to the ECC can be resolved by the Court.
The Casiño Group argues that the validity of the third amendment should have been resolved by the appellate court because it is covered by the broad issues set during the preliminary conference.
RP Energy counters that this issue cannot be resolved because it was expressly excluded during the preliminary conference.
The appellate court sustained the position of RP Energy and ruled that this issue was not included in the preliminary conference so that it cannot be resolved without violating the right todue process of RP Energy.
We agree with the appellate court.
Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues set during the preliminary conference, as it appears at that time that the application for the third amendment was still ongoing. The following clarificatory questions during the aforesaid conference confirm this, viz.:
J. LEAGOGO:
So what are you questioning in your Petition?
ATTY. RIDON:
We are questioning the validity of the amendment, Your Honor.
J. LEAGOGO:
Which amendment?
ATTY. RIDON:
From 2 x 150 to 1 x 300, Your Honor.
J. LEAGOGO:
Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you still have remedies there, you can make your noise there, you can question it to your heart[’]s content because it is still pending
x x x x
J. LEAGOGO:
Atty. Ridon, I go back to my question. We’re not yet talking of the legal points here. I’m just talking of what are you questioning. You are questioning the 1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because it was 2 x 150 and then 1 x 300?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Up to that point?
ATTY. RIDON:
Yes, Your Honor.
J. LEAGOGO:
Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear enough for all of us.
ATTY. RIDON:
Yes, Your Honor.228
Given the invocation of the right to due process by RP Energy, we must sustain the appellate court’s finding that the issue as to the validity of the third amendment cannot be adjudicated in this case.
Refutation of the Partial Dissent.
Justice Leonen partially dissents from the foregoing disposition on the following grounds:
(a) Environmental cases, such asa petition for a writ of kalikasan, should not, in general,be litigated viaa representative, citizen or class suit because of the danger of misrepresenting the interests— and thus, barring future action due to res judicata— of those not actually present in the prosecution of the case, either because they do not yet exist, like the unborn generations, or because the parties bringing suit do not accurately represent the interests ofthe group they represent or the class to which they belong. As an exception, such representative, citizen or class suit may be allowed subject to certain conditions; and
(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void for failure to submit a new EIS in support of the applications for these amendments to the subject ECC, and a petition for writ of kalikasanis not the proper remedy to raise a defect inthe ECC.
We disagree.
A.
Justice Leonen’s proposition that environmental cases should not, in general, be litigated via a representative, citizen or class suit is both novel and ground-breaking. However, it isinappropriate to resolve such an important issue in this case, in view of the requisites for the exercise of our power of judicial review, because the matter was not raised by the parties so that the issue was not squarely tackled and fully ventilated. The proposition will entail, as Justice Leonen explains, an abandonment or, at least, a modification of our ruling in the landmark case of Oposa v. Factoran.229 It will also require an amendment or a modification of Section 5 (on citizen suits), Rule 2 ofthe Rules of Procedure for Environmental Cases. Hence, it is more appropriate to await a case where such issues and arguments are properly raisedby the parties for the consideration of the Court.
B.
Justice Leonen reasons that the amendments to the subject ECC are void because the applications therefor were unsupported by anEIS, as required by PD 1151 and PD 1586. The claim is made that an EIS is required by law, even if the amendment to the ECC is minor, because an EIS is necessary to determine the environmental impact of the proposed modifications to the original project design. The DENR rules, therefore, which permit the modification of the original project design without the requisite EIS, are void for violating PD 1151 and PD 1586.
We disagree.
Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action, project or undertaking that significantly affects the quality of the environment, viz:
SECTION 4. Environmental Impact Statements. — Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, including government-owned or -controlled corporations, as well as private corporations, firms and entities shall prepare, file and include in every action, projector undertaking which significantly affects the quality of the environmenta detailed 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-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use and commitment are warranted.
Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same. (Emphasis supplied)
As earlier stated, the EIS was subsequently developed and strengthened through PD 1586 which established the Philippine Environmental Impact Statement System. Sections 4 and 5 of PD 1586 provide:
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects.1avvphi1 The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protective measures against calamituous factors such as earthquake, floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time to time.
SECTION 5. Environmentally Non-Critical Projects. — All other projects, undertakings and areas not declared by the President as environmentally critical shall be considered as non-critical and shall not be required to submit an environmental impact statement. The National Environmental Protection Council, thru the Ministry of Human Settlements may however require non-critical projects and undertakings to provide additional environmental safeguards as it may deem necessary. (Emphasis supplied)
These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was subsequently issued which, among others, classified fossil-fueled power plants as environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances, the subject project, a coal power plant, was classified by the DENR as an environmentally critical project, new and single. Hence, RP Energy was required to submit an EIS in support of its application for an ECC. RP Energy thereafter complied with the EIS requirement and the DENR, after review, evaluation and compliance with the other steps provided in its rules, issued an ECC in favor of RP Energy. As can be seen, the EIS requirement was duly complied with.
Anent Justice Leonen’s argument thatthe subsequent amendments to the ECC were void for failure to prepare and submit a new EIS relative to these amendments, it is important to note thatPD 1586 does not state the procedure to be followed when there is an application for an amendment to a previously issued ECC. There is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.
In footnote 174 of the ponencia, it is stated:
Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged by the Casiño Group on the ground that it is ultra vires before the appellate court. It argued that the laws governing the ECC do not expressly permit the amendment of an ECC. However, the appellate court correctly ruled that the validity of the rules cannot be collaterally attacked. Besides,the power of the DENR to issue rules on amendments of an ECC is sanctioned under the doctrine of necessary implication. Considering that the greater power todeny or grant an ECC is vested by law in the President or his authorized representative, the DENR, there is no obstacle to the exercise of the lesser or implied power to amend the ECC for justifiable reasons. This issue was no longer raised before this Court and, thus, we no longertackle the same here.
Because PD 1586 did not expressly provide the procedure to be followed in case of an application for an amendment toa previously issued ECC, the DENR exercised its discretion, pursuant to its delegated authority to implement this law, in issuing DAO 2003-30 and the Revised Manual.
Justice Leonen’s argument effectively challenges the validity of the provisions in DAO 2003-30 and the Revised Manual relative to amendments to an ECC for being contrary to PD 1151 and 1586.
We disagree.
First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.
Second, as earlier noted, the proposition would constitute a collateral attack on the validity of DAO 2003-30 and the Revised Manual, which is not allowed under the premises. The Casiño Group itself has abandoned this claim before this Court so that the issue is not properly before this Court for its resolution.
Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised Manual can be allowed in this case, the rules on amendments appear to be reasonable, absent a showing of grave abuse of discretion or patent illegality.
Essentially, the rules take into consideration the nature of the amendment in determining the proper Environmental Impact Assessment (EIA) document type that the project proponent will submit in support of its application for an amendment to its previously issued ECC. A minor amendment will require a less detailed EIA document type, like a Project Description Report (PDR), while a major amendment will require a more detailed EIA document type, like an Environmental Performance Report and Management Plan (EPRMP) or even an EIS.230
The rules appear to be based on the premise that it would be unduly burden some or impractical to require a project proponent to submit a detailed EIA document type, like an EIS, for amendments that, upon preliminary evaluation by the DENR, will not cause significant environmental impact. In particular, as applied to the subject project, the DENR effectively determined that it is impractical to requireRP Energy to, in a manner of speaking, start from scratch by submitting a new EIS in support of its application for the first amendment to its previously issued ECC, considering that the existing EIS may be supplemented by an EPRMP to adequately evaluate the environmental impact of the proposed modifications under the first amendment. The same reasoning may be applied to the PDR relative to the second amendment. As previously discussed, the Casiño Group failed to provethat the EPRMP and PDR were inadequate to assess the environmental impact of the planned modifications under the first and second amendments, respectively. On the contrary, the EPRMP and PDR appeared to contain the details of the planned modifications and the corresponding adjustments to bemade in the environmental management plan or mitigating measures inorder to address the potential impacts of these planned modifications. Hence, absent sufficient proof, there is no basis to conclude that the procedure adopted by the DENR was done with grave abuse of discretion.
Justice Leonen’s proposition would effectively impose a stringent requirement of an EIS for each and every proposed amendment to an ECC, no matter how minor the amendment may be. While this requirement would seem ideal, in order to ensure that the environmental impact of the proposed amendment is fully taken into consideration, the pertinent laws do not, however, expressly require that such a procedure be followed.As already discussed, the DENR appear to have reasonably issued DAO 2003-30 and the Revised Manualrelative to the amendment process of an ECC, by balancing practicality vis-à-vis the need for sufficient information in determining the environmental impact of the proposed amendment to an ECC. In fine, the Court cannot invalidate the rules which appear to be reasonable, absent a showing of grave abuse of discretion or patent illegality.
We next tackle Justice Leonen’s argument that a petition for certiorari,and not a writ of kalikasan,is the proper remedy to question a defect in an ECC.
In general, the proper procedure to question a defectin an ECC is to follow the appeal process provided in DAO 2003-30 and the Revised Manual. After complying with the proper administrative appeal process, recourse may be made to the courts in accordance with the doctrine of exhaustion of administrative remedies. However, as earlier discussed, in exceptional cases, a writ of kalikasan may be availed of to challenge defects in the ECC providedthat (1) the defects are causally linked or reasonably connected to an environmental damage of the nature and magnitudecontemplated under the Rules on Writ of Kalikasan, and (2) the case does not violate, or falls under an exception to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction.
As previously discussed, in the case at bar, only the allegation with respect to the lack of an EIA relative to the first and second amendments to the subject ECC may be reasonably connected to such an environmental damage. Further, given the extreme urgency of resolving the issue due to the looming power crisis, this case may be considered as falling under an exception to the doctrine of exhaustion of administrative remedies. Thus, the aforesaid issue may be conceivably resolved in a writ of kalikasan case.
More importantly, we have expressly ruled that this case is an exceptional case due to the looming power crisis, so that the rules of procedure may be suspended in order to address issues which, ordinarily, the Court would not consider proper in a writ of kalikasan case. Hence, all issues, including those not proper in a writ of kalikasan case, were resolved here in order to forestall another round of protracted litigation relative to the implementation of the subject project.
Conclusion
We now summarize our findings:
1. The appellate court correctly ruled that the Casiño Group failed to substantiate its claims thatthe construction and operation of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan. On the other hand, RP Energy presented evidenceto establish that the subject project will not cause grave environmental damage, through its Environmental Management Plan, which will ensure thatthe project will operate within the limits of existing environmental laws and standards;
2. The appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the signature is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP Energy were not properly apprised of the issue of lack of signature in order for them to present controverting evidence and arguments on this point, as the issue only arose during the course of the proceedings upon clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it learned that the ECC had been invalidatedon the ground of lack of signature in the January 30, 2013 Decision of the appellate court. The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability portion, was issued by the DENR-EMB, and remains uncontroverted. It showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. Because the signing was done after the official release of the ECC on December 22, 2008, wenote that the DENR did not strictly follow its rules, which require that the signing of the Statement of Accountability should be done before the official release of the ECC. However, considering that the issue was not adequately argued norwas evidence presented before the appellate court on the circumstances at the time of signing, there is insufficient basis to conclude that the procedure adoptedby the DENR was tainted with bad faith or inexcusable negligence. We remind the DENR, however, to be more circumspect in following its rules. Thus, we rule that the signature requirement was substantially complied with pro hac vice.
3. The appellate court erred when it ruled that the first and second amendments to the ECC were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. It failed to properly consider the applicable provisions in DAO 2003-30 and the Revised Manual for amendment to ECCs. Our own examination of the provisions on amendments to ECCs in DAO 2003-30 and the Revised Manual, as wellas the EPRMP and PDR themselves, shows that the DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first and second amendments, respectively. Through these documents, which the DENR reviewed, a new EIA was conducted relative to the proposed project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent illegality, relative to both the procedure and substance of the amendment process, we uphold the validity of these amendments;
4. The appellate court erred when it invalidated the ECC for failure to comply with Section 59 of the IPRA Law.1âwphi1 The ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules. Hence, there is no necessity to secure the CNO under Section 59 before an ECC may be issued, and the issuance of the subject ECC without first securing the aforesaid certification does not render it invalid;
5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy for failure to comply withSection 59 of the IPRA Law. While we find that a CNO should have been secured prior to the consummation of the LDA between SBMA and RP Energy, considering that this is the first time we lay down the rule of action appropriate to the application of Section 59, we refrain from invalidating the LDA for reasons of equity;
6. The appellate court erred when it ruled that compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the concerned sanggunian requirement) is necessary prior to issuance of the subjectECC. The issuance of an ECC does not, by itself, result inthe implementation of the project. Hence, there is no necessity to secure prior compliance with the approval of the concerned sanggunian requirement, and the issuance of the subject ECC without first complying with the aforesaid requirement does not render it invalid. The appellate court also erred when it ruled that compliance with the aforesaid requirement is necessary prior to the consummation of the LDA. By virtue of the clear provisions of RA 7227, the project is not subject to the aforesaid requirement and the SBMA’s decision to approve the project prevails over the apparent objections of the concerned sanggunians. Thus, the LDA entered into between SBMA and RP Energy suffers from no infirmity despite the lack of approval of the concerned sanggunians; and
7. The appellate court correctly ruled thatthe issue as to the validity of the third amendment to the ECC cannot be resolved in this case because it was not one of the issues set during the preliminary conference, and would, thus, violate RP Energy’s right to due process. WHEREFORE, the Court resolves to:
1. DENY the Petition in G.R. No. 207282; and
2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:
2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 00015 are reversed and set aside;
2.2. The Petition for Writ of Kalikasan, docketed as CA-G.R. SP No. 00015, is denied for insufficiency of evidence;
2.3. The validity of the December 22, 2008 Environmental Compliance Certificate, as well as the July 8, 2010 first amendment and the May 26, 2011 second amendment thereto, issued by the Department of Environment and Natural Resources in favor of Redondo Peninsula Energy, Inc., are upheld; and
2.4. The validity of the June 8, 2010 Lease and Development Agreement between Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc. is upheld.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice |
(Please see Concurring Opinion)
PRESBITERO J. VELASCO, JR.
Associate Justice |
TERESITA J. LEONARDO-DE CASTRO
Associate Justice |
(On leave)
ARTURO D. BRION*
Associate Justice |
DIOSDADO M. PERALTA
Associate Justice |
LUCAS P. BERSAMIN
Associate Justice |
MARTIN S. VILLARAMA, JR.
Associate Justice |
JOSE PORTUGAL PEREZ
Associate Justice |
JOSE CATRAL MENDOZA
Associate Justice |
BIENVENIDO L. REYES
Associate Justice |
ESTELA M. PERLAS-BERNABE
Associate Justice |
MARVIC M.V.F. LEONEN
Associate Justice |
FRANCIS H. JARDELEZA**
Associate Justice
C E R T I F I C A T I O N
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer ofth'e opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
* On leave.
** No part.
1 Rollo (G.R. No. 207257), pp. 122-153; rollo (G.R. No. 207276), Volume I, pp. 13-105; rollo (G.R. 207282), pp. 2-50; and rollo (G.R. No. 207366), pp. 117-149.
2 Rollo (G.R. No. 207257), pp. 158-258; penned by Associate Justice Celia C. Librea-Leagogo and concurred in by Associate Justices Franchito N. Diamante and Melchor Quirino C. Sadang.
3 Id. at 259-266.
4 The Bases Conversion and Development Act of 1992.
5 Rollo (G.R. No. 207257), p. 210.
6 Id.
7 Id. at 210-211.
8 Id. at 159.
9 Id.
10 Id. at 211.
11 Id.
12 Rollo (G.R. No. 207276), Volume I, p. 24.
13 Rollo (G.R. No. 207257), p. 160.
14 Id. at 167 and 211.
15 Id. at 160.
16 Id. at 213.
17 Id. at 179.
18 Id. at 167.
19 Id.
20 Id. at 211.
21 Id. at 165.
22 Id. at 216.
23 Id. at 165.
24 Id at 216.
25 Id.
26 Id. at 160.
27 Id.
28 Id. at 159.
29 Id.
30 Id. at 179.
31 Id. at 159.
32 Id. at 163.
33 Id.
34 Id. at 161.
35 Id. at 160-161.
36 Id. at 162.
37 Id.
38 Id. at 170.
39 Id. at 170-172.
40 Id. at 173.
41 People’s Recovery Empowerment and Development Assistance
42 Rollo (G.R. No. 207257), p. 175.
43 Id.
44 Id. at 178.
45 Id. at 184.
46 Id. at 187.
47 Id. at 190.
48 Id. at 195.
49 Id. at 199.
50 Id. at 203.
51 Id. at 178.
52 Id. at 198.
53 Id. at 239-247.
54 Id. at 236-239.
55 Id. at 239.
56 Id. at 222-228.
57 Id. at 230-236.
58 Id. at 213-216.
59 Id. at 216-222.
60 Id. at 213.
61 Id. at 230-236.
62 Id. at 222-230.
63 Id. at 223-224.
64 Id.
65 Id. at 247-248.
66 Id. at 260.
67 Id.
68 Id. at 262.
69 Id. at 260-261.
70 Id. at 259-266.
71 Id. at 261.
72 Id.
73 Id. at 262.
74 Id. at 264.
75 Id. at 262-263.
76 Id. at 265.
77 Rollo (G.R. No. 207282), p. 26.
78 Id. at 27.
79 Id. at 27-28.
80 Id. at 29-36.
81 Id. at 39-44.
82 Rollo (G.R. No. 207257), pp. 133-137.
83 Id. at 148-152.
84 Id. at 150-151.
85 Id. at 151-152.
86 Id. at 141.
87 Id. at 138-145.
88 Id. at 140.
89 Id. at 145-148.
90 Rollo (G.R. No. 207366), pp. 134-137.
91 Id. at 136-137 and 140-141.
92 Id. at 141-142.
93 Id. at 142-147.
94 Id.
95 Id. at 138-139.
96 Id.
97 Id.
98 Rollo (G.R. No. 207276), Volume I, pp. 32-37.
99 Id. at 37-41.
100 Id. at 41-43.
101 Id. at 52-77.
102 Id. at 78-87.
103 Id. at 87-102.
104 Id. at 44-52.
105 Rule 7, Part III, Rules of Procedure for Environmental Cases
106 A.M. No. 09-6-8-SC dated April 13, 2010
107 ARTICLE VIII, Section 5(5) of the Constitution provides:
Section 5. The Supreme Court shall have the following powers:
x x x x
5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
108 Article II, Section 16, Constitution.
109 The Rationale and Annotation to the Rules of Procedure for Environmental Cases issued by the Supreme Court [hereafter Annotation], p. 133.
110 Annotation, p. 78.
111 Annotation, p. 78-79.
112 Annotation, p. 139.
113 Rollo (G.R. 207282), pp. 2-50.
114 See Rule 43, Rules of Court.
115 See Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479, 494 (2003).
116 It should be noted that the Rules on the Writ of Kalikasan were promulgated with due regard to the doctrine of exhaustion of administrative remedies and primary jurisdiction. (Annotation, p. 100).
117 Boracay Foundation v. The Province of Aklan, G.R. No. 196870, June 26,2012, 674 SCRA 555, 604.
118 Annotation, p. 140.
119 CA rollo, Volume I, pp. 41-47.
120 Referred to as the Casiño Group in this case.
121 Rollo (G.R. No. 207257), pp. 241-245.
122 Rollo (G.R. No. 207276), Volume I, p. 474.
123 CA rollo, Volume XVI, pp. 5856-5857.
124 TSN, December 12, 2012, pp. 179-186.
125 RA 8749 entitled "An Act Providing for a Comprehensive Air Pollution Control Policy and for Other Purposes"; also known as "The Philippine Clean Air Act of 1999."
126 Refers to ground level concentrations.
127 Rollo (G.R. No. 207276), Volume I, p. 475.
128 TSN, December 5, 2012, pp. 162-164, 169.
129 CA rollo, Volume XV, pp. 5763-5765.
130 CA rollo, Volume XVI, p. 5857.
131 Rollo (G.R. No. 207282), pp. 342-343.
132 TSN, December 12, 2012, pp. 171-174.
133 CA Rollo, Volume XVI, p. 5859.
134 TSN, December 12, 2012, pp. 141-148.
135 Section 3(l), DAO 2003-30.
136 Salomon v. Intermediate Appellate Court, 263 Phil. 1068, 1077 (1990).
137 The appellate court noted, thus:
However, while the CFB technology appears to be a better choice compared with the traditional technology for operating power plants, it cannot be declared, at this point in time, that the CFB technology to be used by RP Energy in its Power Plant project will not cause any environmental damage or harm. Sarkki, who is one of the members of the team that developed the CFB technology and an employee of Foster Wheeler (manufacturer of the CFB boilers) testified that: it depends on the kind of coal and the technology to be used in burning the coal; semirara coal is known to have very high fouling characteristics and it was not in the interest of RP Energy to utilize said coal; and high fouling means ash is melting in low temperature and collected on its surfaces and making it impossible to continue the operation of a boiler; RP Energy has not yet ordered any CFB boiler from Foster Wheeler, and manufacturing has not started because there is no finalized contract; and RP Energy is still finalizing its coal contract. Wong testified that he was not shown any coal supply agreement. Ouano testified that, per report, there are no coal and equipment supply agreements yet and that he recommended to RP Energy the Indonesian coal because it has much lower volatile matter and it is better than semirara coal. Mercado also testified that she did not see any coal supply agreement with a supplier. Evangelista testified that RP Energy already selected Foster Wheeler as the supplier for the Power Plant project's boiler but there is no purchase agreement yet in connection with the equipment to be used. Thus, since RP Energy has, as yet, no equipment purchase agreement in connection with its proposed CFB Coal-Fired Power Plant project nor a coal supply agreement that comply with the recommendations of the various engineers on CFB technology, there is no scientific certainty of its environmental effect. [Rollo (G.R. No. 207257), pp. 245-246]
138 CA rollo, Volume I, pp. 127-129.
139 Id. at 131-132.
140 SEC. 6. Failure to settle.- If there is no full settlement, the judge shall:
x x x x
(l) Determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae); x x x
141 SEC. 12. Discovery Measures.— A party may file a verified motion for the following reliefs:
(a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law.
After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties.
(b) Production or inspection of documents or things;order —The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.
The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties.
142 Annotation, p. 80.
143 Environmental Performance Report and Management Plan.
144 Rollo (G.R. 207282), pp. 21-22.
145 CA rollo, Volume III, p. 847.
146 Id.
147 TSN, October 29, 2012, p. 82; see also issues for the Casiño Group in preliminary conference.
148 In its Resolution dated July 23, 2013, the Court required the adverse parties to comment within ten days from notice on the separate Petitions for Review on Certiorariin G.R. Nos. 207257, 207276, 207282 and 207366. Then in its Resolution dated April 1, 2014, the Court resolved to, among others, dispense with the filing of the comment of respondents Casiño, et al. (Casiño Group) in G.R. No. 207276. Additionally, the Court, among others, noted in its Resolution dated June 10, 2014, SBMA’s Manifestation and Motion to Resolve dated May 21, 2014 praying, among others, that respondents Casiño, et al. (Casiño Group) be deemed to have waived their right to file their comment with respect to the Petition for Review on Certiorari dated July 15, 2013 in G.R. No. 207366.
149 As earlier noted, the groundsraised by the Casiño Group in its Petition for Writ of Kalikasanwere limited to whether: (1) the power plant project would cause grave environmental damage; (2) it would adversely affect the health of the residents of the municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo; (3) the ECC was issued and the LDA entered into without the prior approval of the sanggunians concerned as required under Sections 26 and 27 of the Local Government Code (LGC); (4) the LDA was entered into without securing a prior certification from the NCIP as required under Section 59 of the IPRA Law; (5) Section 8.3 of DAO 2003-30 which allows amendments of ECCs is ultra viresbecause the DENR has no authority to decide on requests for amendments of previously issued ECCs in the absence of a new EIS; and (6) due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null and void.
150 As narrated earlier, the issues set during the preliminary conference were limited to:
I. ISSUES
A. Petitioners (Casiño Group)
1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x) and its amendment to 1x300 MW Power Plant, and the Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as required under Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without prior consultation with and approval of the concerned local government units (‘LGUs,’ x x x), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the Local Government Code;
3. Whether x x x Section 8.3 of DENR Administrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x x) providing for the amendment of an ECC is null and void for being ultra vires; and
4. Whether x x x the amendment of RP Energy’s ECC under Section 8.3 of DAO No. 2003-30 is null and void.
B. Respondent RP Energy
1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;
1.1 Whether x x x the same is valid until annulled;
2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300 MW Power Plant;
2.1 Whether x x x the instant Petition is proper;
3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its amendment;
3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the instant case;
4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is necessary for the issuance of the DENR ECC and its amendments, and what constitutes LGU approval;
5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;
5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and
6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of proper verification and certification of non-forum shopping with respect to some petitioners.
C. Respondent DENR Secretary Paje
1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;
2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and
3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
Concededly, the issue as to "whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its amendment" is broad enough to include the issue of the lack of signature. That this was, however, contemplated by the parties or the appellate court is negated by the context in which the issue arose, as will be discussed in what follows.
151 TSN, December 12, 2012, pp. 63-67.
152 See CIVIL CODE, Art. 745 and 749.
153 Revised Procedural Manual for DAO 2003-30 (Revised Manual), p. 15.
154 Philippine Environmental Impact Statement System.
155 Administrative Order.
156 Underline supplied for this sentence.
157 Revised Manual, p. 9 and Glossary, letter h; Section 3(d), Article I, DAO 2003-30.
158 TSN, December 12, 2012, pp. 65-67.
159 CA rollo, Volume XVII, pp. 7010-7011.
160 Section 3 of PD 1151 provides:
SECTION 3. Right to a Healthy Environment. — In furtherance of these goals and policies, the Government recognizes the right of the people to a healthful environment. It shall be the duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment.
161 Section 4, PD 1151.
162 Section 1, Article I, DAO 2003-30.
163 Section 3(h), Article I,DAO 2003-30.
164 Under Section 3(a), Article I of DAO 2003-30, a CNC is "a certification issued by the EMB certifying that, based on the submitted project description, the project isnot covered by the EIS System and is not required to secure an ECC."
165 As distinguished from single projects, co-located projects/undertakings are defined under Section 3(b), Article I of DAO 2003-30 as "projects, or series of similar projects or a project subdivided to several phases and/or stages by the same proponent, located in contiguous areas."
166 Section 3(k), Article I of DAO 2003-30 defines an EIS as a "document, prepared and submitted by the project proponent and/or EIA Consultant that serves as an application for an ECC. It is a comprehensive study of the significant impacts of a project on the environment. It includes an Environmental Management Plan/ Program that the proponent will fund and implement to protect the environment."
167 Section 3(s), Article I of DAO 2003-30 defines an IEE as a "document similar to an EIS, but with reduced details and depth of assessment and discussion."
168 Section 3(t), Article I of DAO 2003-30 defines an IEE Checklist Report as a "simplified checklist version of an IEE Report, prescribed by the DENR, to be filled up by a proponent to identify and assess a project's environmental impacts and the mitigation/enhancement measures to address such impacts."
169 Section 3(p), Article I of DAO 2003-30 defines an EPRMP as a "documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECC’s, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice."
170 Section 3(x), Article I of DAO 2003-30 defines a PD as a "document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction, construction, operation and abandonment phases. It is to be used for reviewing co-located and single projects under Category C, as well as for Category D projects."
171 Section 3(p), Article I, DAO 2003-30.
172 Section 1.0, paragraph 8 (b), Revised Manual.
173 Glossary, letter (t), Revised Manual.
174 Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged by the Casiño Group on the ground that it is ultra viresbefore the appellate court. [It] argued that the laws governing the ECC do not expressly permit the amendment of an ECC. However, the appellate court correctly ruled that the validity of the rules cannot be collaterally attacked. Besides, the power of the DENR to issue rules on amendments of an ECC is sanctioned under the doctrine of necessary implication. Considering that the greater power to deny or grant an ECC is vested by law in the President or his authorized representative, the DENR, there is no obstacle to the exercise of the lesser or implied power to amend the ECC for justifiable reasons. This issue was nolonger raised before this Court and, thus, we no longer tackle the same here.
175 Footnotes omitted.
176 Underline supplied.
177 Underline supplied.
178 Footnotes omitted.
179 Rollo (G.R. No. 207257), pp. 150-151. (DENR’s Petition, pp. 29-30)
180 Underline supplied.
181 Underline supplied.
182 Underline supplied.
183 Emphasis supplied.
184 To illustrate the flexibility of the EIA documents used in the EIA process, we can look at the EPRMP itself.
The contents of an EPRMP, under Section 5.2.5, Article II of DAO 2003-30, are as follows:
5.2.5. x x x
The EPRMP shall contain the following:
a. Project Description;
b. Baseline conditions for critical environmental parameters;
c. Documentation of the environmental performance based on the current/past environmental management measures implemented;
d. Detailed comparative description of the proposed project expansion and/or process modification with corresponding material and energy balances in the case of process industries[;] and
e. EMP based on an environmental management system framework and standard set by EMB.
As previously demonstrated, the EPRMP is not justused for ECPs, which are operating but without an ECC or operating with a previous ECC but planning for expansion or re-start, but for major amendments to a non-implemented project with a previous ECC, such as the subject project. Section 5.2.5(c), however, requires that an EPRMP should contain "[d]ocumentation of the environmental performance based on the current/past environmental management measures implemented." This would be inapplicable to a nonimplemented project. Thus, the project proponent merely notes in the EPRMP that there are no current/past environmental management measures implemented because the project is not yet implemented. As can be seen, the use of the EPRMP is flexible enough to accommodate such different project types, whether implemented or not, for as long as the necessary information is obtained in order to assess the environmental impact of the proposed changes to the original project design/description.
185 Emphasis supplied.
186 CA rollo, Volume IV, pp. 1129-1132.
187 Excerpts from Section 4 of the EPRMP ("Baseline Environmental Conditions for Critical Environmental Parameters, Impact Assessment and Mitigation") are reproduced below:
4.1 The Land
4.1.1 Existing Condition
The proposed route of the transmission line will traverse grasslands with sloping terrain, ranging from 3-50% slopes as shown in Figure 30 and Figure 31. x x x
4.1.2 Impacts
Construction of the transmission line components will include minimal civil and electrical works. Tower structures will be pre-assembled in a workshop and transported to designated locations for erection and linkage. Excavation and clearing activities will be minimal and short-term, whilst generated spoils will be low/negligible in terms of volume.
x x x x
4.1.3 Mitigation
Generated spoils will be used as backfill material for aesthetic rehabilitation and stabilisation, if necessary. Slope stabilisation, and inspection and testing of the transmission line components will be conducted prior to project turnover for quality assurance and structural integrity. Proper handling and transport of the tower structures, aswell as safe practice for electrical works will be disseminated and complied with across all personnel and involved contractors.
An integrated foundation system consisting of combined footings will be employed in order to ensure adequate footing embedment and tower stabilization. Soil stabilisation and slope protection measures will be implemented to significantly reduce erosion potential of mountain soil.
Tower installation and related activities will only commence upon finalisation of agreement between the proponent and concerned stakeholders (i.e.,regulatory agencies). Disputes and discussions over lease agreement and right-of-way permitting works will be placed through due legal process of the SBMA.
x x x x
4.2 The Water
x x x x
4.2.1 Existing Condition
The Subic Bay is rich in marine biodiversity including coral reef areas, seagrass patches, fisheries and coastal resources. x x x
4.2.2 Impacts
The additional RPE project facilities, except for the transmission line, will have impacts on water quality and ecology for both freshwater and marine components, as these will be located along the coastline or involve the use of freshwater resources.
The construction phase entails earth-moving activities, both inland and offshore. The initial concern upon implementation of the project is the degradation of the reef area within the proposed RPE project site, resulting from high sediment influx either via soil erosion, surface run-off or re-suspension.
x x x x
4.2.3 Mitigation
The following mitigating measures may be applied in order to minimize the potential impacts of the proposed project on marine resources. Whilst these measures will aid in minimizing the perceived impacts, mortalities of coastal resources may still occur as individuals of different coral and seagrass species have different levels of environmental sensitivity. Likewise, mortalities may also be influenced by a variety of factors unrelated to the proposed project such as water temperature fluctuations due to climatic phenomenon.
● Placing mooring buoys within the area encompassed by offshore construction work would allow construction barges to dock onto them during the construction of the coal pier and other offshore project facilities. The mooring buoys will negate the need to use chain anchors to prevent these vessels from drifting towards the reef or seagrass areas.
● During the driving of the pier piles, the use of silt curtains to minimise suspended sediments from reaching the coral community will aid the chance of survival of many coral colonies. The coral community in the area is dominated by massive growth forms which are more resilient to sedimentation compared to branching colonies. Whilst this is true, these massive forms still have a maximum tolerance threshold, hence the use of mitigating measures is imperative. Sediment curtains will greatly improve the chances of survival of these corals during the construction phase by constraining the movement of liberated silt.
● The operators of construction equipment, as well ascontractors, will need to be informed of the location of the fragile coral community and seagrass bed in the area, so that they will work in a manner that will minimise the effects on these areas. This condition can be included in their contracts.
● Alignment and/or integration of mitigations withthe Subic Coastal Resources Management Plan.
● Overall, the primary impact that needs to be mitigated is sedimentation resulting from heavy equipment manoeuvring to construct the coal pier and other structures and from increased traffic in the project area due to vehicles working inland and construction barges working offshore.
x x x x
4.3 The Air
Baseline conditions for this module as reported in the EIS (GHD, 2008) are appropriate and sufficient to describe site conditions for the additional RPE components. A brief summary to highlight the key impacts and mitigation for this module are presented below.
4.3.1 Existing Condition
The air shed of the proposed project site falls under the category of Type I climate, which is characterized by two pronounced seasons, generally dry season from December to May, and wet season from June to November.
4.3.2 Impacts
Dust and noise generation resulting from earthmoving activities (i.e., excavation, scraping and leveling methods) is of significant concern. Concentration of suspended particulates in the atmosphere is likely to increase for the duration of the construction phase. Similarly, high noise levels within the immediate impact area will be experienced.
4.3.3 Mitigation
The proponent will implement control measures addressed at reducing noise levels and dust concentrations. Regular wetting of construction grounds, as well as putting up perimeter wall around major construction areas will limit the re-suspension of dust. Installation of noise barriers (i.e., vegetation buffer, noise wall) around the construction area and noise reduction technology for vehicles and equipment (i.e., mufflers) will significantly reduce the impacts of construction noise to nearby communities. In addition, construction activities contributing to high-noise levels will be scheduled during daytime. x x x (CA rollo, Volume IV, pp. 1193-1194, 1200-1201, 1204)
188 Section 3(x), Article I, DAO 2003-30.
189 Section 1.0, paragraph 8 (a) and (b), Revised Manual.
190 Glossary, letter aa, Revised Manual.
191 Rollo (G.R. No. 207257), pp. 151-152. (DENR’s Petition pp. 30-31)
192 Underline supplied.
193 Supra note 191.
194 Underline supplied.
195 Underline supplied.
196 Rollo (G.R. No. 207282) p. 9. (Casiño Group Petition, p. 8)
197 CA rollo, Volume V, pp. 1444-1448.
198 The PDR states, in part:
RPE now proposes to construct a single high-efficiency 300-MW (net) circulating-fluidized-bed coal-fired generating unit for Phase 1 of the project, instead of two less-efficient 150-MW units, the environmental impacts of which are unchanged from the original proposal. (CA rollo, Volume V, p. 1441)
199 Rollo (G.R. No. 207257), p. 68.
200 Section 3(h), Article I, DAO 2003-30.
201 Rules and Regulations implementing Republic Act No. 8371, otherwise known as "The Indigenous Peoples’ Rights Act of 1997."
202 Cruz v. Sec. of Environment & Natural Resources, 400 Phil. 904, 1012 (2000).
203 RA 8371, Section 2 (b).
204 <http://legal-dictionary.thefreedictionary.com/license> (visited 27 November 2014).
205 <http://legal-dictionary.thefreedictionary.com/permit> (visited 27 November 2014).
206 Hanjin Heavy Industries and Construction
207 Article 1643 of the Civil Code provides:
ARTICLE 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid.
208 This is the clear import of the definition of "ancestral domains" in Section 3(a) of the IPRA Law, viz:
SECTION 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:
a) Ancestral Domains — Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; x x x (Emphasis supplied)
209 The following are the relevant constitutional provisions:
Article II, Section 22: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.
Article XII, Section 5: The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.
The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domain.
ARTICLE XIV, Section 17: The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.
ARTICLE XIII, Section 6: The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.
The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.
Article XVI, Section 12: The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.
Article VI, Section 5(2): The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.
210 RP Energy’s EIS dated September 2008 stated, in part:
4.4.1.1.4 Indigenous People
The Aetas are acknowledged to be one of the earliest settlers in the municipality. Historically, as lowlanders came to Subic, Aetas were displaced and wereforced to flee to the hinterlands. While a number of Aetas have managed to be integrated within the mainstream of development activities in the municipality, many have remained deprived of public services such as health, social welfare and basic education. Aeta families are scattered in some barangays in Subic, such as: Batiawan and Naugsol. There are no Aeta communities identified within the vicinity of the project areas." (CA rollo, Volume III, p. 857)
211 This is the clear implication of the clause "except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations" in the definition of "ancestral domain," in the IPRA Law viz:
SECTION 3. Definition of Terms. — For purposes of this Act, the following terms shall mean:
a) Ancestral Domains — Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; x x x (Emphasis supplied)
212 Article 5 of the Civil Code provides:
ARTICLE 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.
213 The Certificate of Non-Overlap with Control No. RIII-CNO-12-10-0011 issued on 31 October 2012 stated:
"THIS IS TO CERTIFY that based on the findings of the FBI Team in its report dated October 8, 2012 and submitted by Ms. Candida P. Cabinta, Provincial Officer, the applied site/s for Certification Precondition situated at Subic Bay Freeport Zone (SBFZ) Sitio Naglatore, Brgy. Cawag, Subic, Zambales covering an aggregate area of Thirty Eight (38.00) hectares more or less, does not affect/overlap with any ancestral domain.
THIS CERTIFICATIONis issued to SBMA-REDONDO PENINSULA ENERGY CORPORATION with office address at Unit 304 The Venue, Rizal Highway, Subic Bay Industrial Park, Phase I, Subic Bay Freeport Zone 2222 in connection with the application for 600 MW Circulating Fluidized Bed (CFB) Coal Fired Power Plant before the Ecology Center, Subic Bay Metropolitan Authority. x x x x (CA rollo, Volume XVI, p. 6495)
214 SECTION 59. Certification Precondition. — All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a fieldbased investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process. (Emphasis supplied)
215 The DENR, in assessing ECC applications, requires project proponents to conduct public participation/consultation. Section 5.3, Article II of DAO 2003-30 on public hearing/consultation requirements provides, in part:
Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. x x x
216 In any event, there appears to be no good reason why the subject project should not comply with the prior consultations requirement under Section 26, in relation to Section 27, of the LGC. There would be no conflict with RA 7227 because prior consultations do not impair the power of the SBMA to approve or disapprove a project within the SSEZ, i.e. the results of the public consultations do not bind or compel the SBMA to either approve or disapprove the project or program. Seediscussion, infra.
217 Article X, Section 2 of the Constitution provides:
The territorial and political subdivisions shall enjoy local autonomy.
218 Alvarez v. Picop, 538 Phil 348, 402-403 (2006).
219 Lina, Jr. v. Paño, 416 Phil. 438, 449-450 (2001).
220 Supra notes 15, 26, and 27.
221 RA 7227, Section 12(a).
222 518 Phil 103 (2006).
223 Id. at124-125.
224 Subic Bay Freeport; also referred to as the SSEZ.
225 Section 11 of the "Rules and Regulations Implementing the Provisions Relative to the Subic Special Economic and Freeport Zone and the Subic Bay Metropolitan Authority Under Republic Act No. 7227, Otherwise Known as the ‘Bases Conversion and Development Act of 1992."
226 III RECORDS, SENATE 8TH CONGRESS, 59TH SESSION, 613 (January 29, 1992).
227 CA rollo, Volume XVII, p. 6893. (Motion for Reconsideration of SBMA)
228 TSN, October 29, 2012, pp. 47, 50-51.
229 G.R. No. 101083, July 30, 1993, 224 SCRA 792 (1993).
230 Note that in Item #8 of the "DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION," a new EIS canbe required for the amendment covered therein:
| 8. |
Conversion to new project type (e.g. bunkerfired plant to gas-fired) |
Considered new application but with lesser data
requirements since most facilities are established; environmental performance in the past will serve as baseline; However, for operating projects, there may be need to request for Relief from ECC Commitment prior to applying for new project type to ensure no balance of environmental accountabilities from the current project |
New ECC /EIS |
The Lawphil Project - Arellano Law Foundation
