CHAPTER 3 A TOUR OF THE LEGAL HORIZON Sub: Philippine law is not amiss in addressing environmental issues in the country

today, from waste and pollution to the respective accountable agencies. The problem, however, remains in the implementation PART I: Relevant Provisions of the Philippine Constit tion Sub: The nations premiere document of law is clear on the States and the citizens roles in safeguarding the countrys natural resources WE, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this onstitution!" # $reamble %he significance of this part of the &'() $hilippine constitution is twofold! *n the literal level, it articulates a common aspiration of the universal need to conserve our natural heritage and national patrimony! *n a symbolic level, there is an e+press recognition of, and a prayer of petition to, a higher and greater being as the $rime ,over of all life! %he national territory comprises the $hilippine archipelago, with all the islands and waters embraced therein, and all other territories over which the $hilippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial seas, the seabed, the subsoil, the insular shelves, and other submarine areas! %he waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the $hilippines!" # Article %his provision of the onstitution defines the boundaries of the territory over which the $hilippine government e+ercises sovereignty and enforces legal power! %he territorial boundaries are also recogni.ed by the governments and countries of the world!

%he $hilippine archipelago may be a tiny spot on the globe, but it is endowed with rich biological diversity! From such a point of view, therefore, this group of islands is not merely a territory" of the $hilippine government or the Filipino people, but a crown jewel in the treasure house of humanity! !asi" h #an ri$hts &/ %he right to health %he 0tate shall protect and promote the right to health of the people and instill health consciousness among them!"# Article --, 0ection &1 %he right to health is nothing less than the right to life! %his means the right to a safe supply of water and the other elements of life! 2aving to drin3 contaminated water, breathe foul air, or eat poisoned food is a violation of a basic human right! %his provision thus serves as a basic constitutional foundation of a good legal argument against the degradation of land, air, and water! %his principle found judicial e+pression in a case involving the garbage dumping activities of a local government! %he dumping ground happened to be part of the watershed of 4aguna de 5ay, one of the largest freshwater la3es in 0outheast Asia! 5ecause of the special ecological characteristics of this '6,666#hectare water body, the management of the la3e and its watershed was given by law to a special agency, the 4aguna 4a3e 7evelopment Authority 8447A/! Acting on the complaint of residents, the 447A ordered the local government to cease and desist from its dumping activities! %his order was anchored on the well#founded fear that it would contaminate the la3e9s waters! %he case eventually ended up in the 0upreme ourt, where the issue of the people9s right to health was placed squarely on the table! %he ourt upheld the constitutionally guaranteed right 8to a balanced and healthful ecology/ of every person:%his is but in consonance with the declared policy of the state ;to protect and promote the right to health of the people and to instill health consciousness among them!9 -t is to be borne in mind that the $hilippines is party to the <niversal 7eclaration of 2uman =ights:which recogni.es health as a fundamental human right!" >/ %he right to a balanced ecology %he 0tate shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature!"# Article --, 0ection &?
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%his right has also been tested in $hilippine ourts! -n this case, a group of Filipino children filed a class suit against the government for the violation of their right to a balanced ecology! %he petitioners, children acting on their own behalf and for generations yet unborn, sought to ban logging concessions in the country9s remaining virgin forests! 0ee3ing to dismiss the lawsuit, the defendant $hilippine government argued that there was no such thing as an environmental right," much less one that could be used by children in a legal action! %he government argued that if they 8children/ had any right at all, it was at best, unclear, undefined, and nebulous!" -n fact, the government argued, the provision is not even found in the section on the 5ill of =ights, but in the section on very broad and general principles and policies of the 0tate! -n upholding the legal personality of the children to sue the government for the enforcement of their environmental right, the $hilippine 0upreme ourt said@ While the right to a balanced and healthful ecology is found under the 7eclaration of $rinciples and 0tate $olicies and not under the 5ill of =ights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter! 0uch a right belongs to a different category of rights altogether, for it concerns nothing less than self#preservation and self#perpetuation, the advancement of which may even be said to predate all governments and constitutions!" A/ %he right to due process Bo person shall be deprived of life, liberty, or property, without due process of law, nor shall any person be denied the equal protection of the laws!"# Article ---, 0ection & 7ue process of law is a fundamental right that is understood by all! -t is usually invo3ed when a person is charged with an offense or a violation of a criminal law! An industrial factory dumps to+ic wastes into the soil and pollutes the drin3ing water of the people in the nearby community! %he contaminated water causes some of them to get sic3 and die! -n addition to the action for damages, the persons who suffered can claim that, as a constitutional principle, their right to health 8and to life/ has been violated and deprived without due process of law! -n fact, they can hold the government directly
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liable for allowing the deprivation of this basic human right! -n countries where an environmental right is not further specifically provided, the right to life" and the due process" principles may be used as the foundation of a legal action to protect the environment! C/ %he right to a good quality of life %he goals of the national economy are a more equitable distribution of opportunities, income and wealthD a sustained increase in the amount of goods and services produced by the nation for the benefit of the peopleD and an e+panding productivity as the 3ey to raising the quality of life for all, especially the underprivileged! %he 0tate shall promote industriali.ation and full employment based on sound agricultural development and agrarian reform, through industries, that ma3e full and efficient use of human and natural resources, and which are competitive in both domestic and foreign mar3ets! 2owever, the 0tate shall protect Filipino enterprises against unfair foreign competition and trading practices! -n the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop! $rivate enterprises, including corporations, cooperatives, and similar collective organi.ations, shall be encouraged to broaden the base of their ownership!"# Article E--, 0ection & %he right to life does not only mean the right to survive and e+ist, but also to a good quality of life! A person living in a slum area, who defecates into the river and at the same time uses its water for washing and bathing is living a life worse than that of a pig in a pigsty! Where a fisherman has to travel for so long and so far into the sea and has to wor3 practically the whole day to catch so little fish, all because the near#shore areas have been so depleted of marine resources, he is not living, but merely surviving! When we have to travel to and from our place of wor3 and spend four to five hours a day on the road, battling traffic and inhaling no+ious fumes, we are not livingD in fact, we are not even surviving! %he time spent on the road is time ta3en away from one9s family! -t is also time ta3en away from leisure, and prevents us from intellectual, emotional and spiritual pursuits that ma3e life worth living! Fet, we tend to accept this waste of time as the price of progress" and the way of modern civili.ation!" 1/ %he right to proper land use 4ands of the public domain are classified into agricultural, forest or timber,

mineral lands, and national par3s! Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted! Alienable lands of the public domain shall be limited to agricultural lands! $rivate corporations or associations may not hold such alienable lands of the public domain e+cept by lease, for a period not e+ceeding >1 years, renewable for not more than >1 years, and not to e+ceed &,666 hectares in area! iti.ens of the $hilippines may lease not more than 166 hectares, or acquire not more than &> hectares thereof by purchase, homestead, or grant! %a3ing into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the ongress shall determine, by law, the si.e of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor!" # Article E--, 0ection A %his onstitutional requirement on land use appears in the Article on Bational Economy and $atrimony! -t states in no uncertain terms that the manner by which we use and develop the land must ta3e into account considerations of conservation and the needs of its ecology! ?/ %he right of access to public information %he right of the people to information on matters of public concern shall be recogni.ed! Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citi.en, subject to such limitations as may be provided by law %&' Article ---, 0ection ) %he right of access to public information is a powerful tool in the game of environmental advocacy! -ndustrial and commercial enterprises are required by law to submit regular and detailed reports of their pollution discharges! %his information is considered a matter of public interest! Any citi.en affected by the pollution of a certain factory can legally see3 access to these records in order to establish the e+istence of pollution! -n case the company has submitted false information in the report submitted, the responsible company officials can be held liable for the offense of falsification of public documents! %he 7epartment of Environment and Batural =esources 87EB=/ is the government agency responsible for environment and natural resources management in the $hilippines! -t is this agency to which the data on the
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company9s discharges must be submitted! 5eing a matter of public interest, the 7EB= cannot simply withhold and refuse to divulge such information! -t can, however, prescribe the manner by which the information can be revealed or disclosed! -t can, for e+ample, set the time and days when the public may be allowed to inspect the records! To prote"t (hat is o rs &/ %he =egalian 7octrine All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the 0tate! With the e+ception of agricultural lands, all other natural resources shall not be alienated! %he e+ploration, development, and utili.ation of natural resources shall be under the full control and supervision of the 0tate! %he 0tate may directly underta3e such activities, or it may enter into co# production, joint venture, or production#sharing agreements with Filipino citi.ens, or corporations or associations at least ?6 per centum of whose capital is owned by such citi.ens! 0uch agreements may be for a period not e+ceeding >1 years, renewable for not more than >1 years, and under such terms and conditions as may be provided by law! -n cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant! %he 0tate shall protect the nation9s marine wealth in its archipelagic waters, territorial sea, and e+clusive economic .one, and reserve its use and enjoyment e+clusively to Filipino citi.ens! %he ongress may, by law, allow small#scale utili.ation of natural resources by Filipino citi.ens, as well as cooperative fish farming, with priority to subsistence fishermen and fishwor3ers in rivers, la3es, bays, and lagoons! %he $resident may enter into agreements with foreign#owned corporations involving either technical or financial assistance for large#scale e+ploration, development, and utili.ation of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country! -n such agreements, the 0tate shall promote the development and use of local, scientific and technical resources!

%he $resident shall notify the ongress of every contract entered into in accordance with this provision, within A6 days from its e+ecution!"# Article E--, 0ection > %his provision is the legal e+pression of the 0tate9s being a product of legal fiction! -n the 0ocial ontract theory discussed earlier, a society got together and agreed on an organi.ation to manage their common affairs! %his was how the 0tate was born! %he 0tate does not e+ist in the physical world but is merely a theoretical concept upon which we have all agreed, by virtue of an unwritten social contract! -n the above provision, we have entrusted the 0tate with some of our natural rights and individual liberties in e+change for security, peace and order, and for activities geared towards the pursuit of the common good! We have also entrusted it with the ownership" of our" natural resources on the assumption that these resources will be used for the common welfare! ,an can own only that which one has made! ,an did not ma3e the natural elements! %herefore, man cannot own these natural elements! *f course, what an individual cannot own cannot also be owned by a group of individuals! ,an9s presumption of ownership" over natural resources is at best just thatGa presumption, without basis in fact! *ne is reminded of the words of a tribal leader in the highlands of the ordillera! 0pea3ing for his people, who opposed the building of a dam that would flood their ancestral lands, ,acling 7ulag said, 0uch arrogance to spea3 of owning the land, when you shall be owned by it! 2ow can you own that which will outlive youH" 0ince man cannot own the elements of nature, it is also clear that our claimed ownership is nothing more than a fiction of law! And since we cannot give something that we do not have or do not own, we have therefore given nothing to the 0tate! Bote the phrase based on real contributions and general welfare of the country" in Article E--, 0ection > above! %his is the constitutional basis to support the argument that earnings from the e+traction of our natural resourcesGmining, logging, and fishingGmust first discount their ecological cost! %his is the only accurate way to determine the real contribution of the activity to the general welfare of the country!" <nless the revenues of e+tractive industries are properly factored with the
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environmental cost, we will be misled into thin3ing that we are earning from these activities, when, in fact, we are losing! >/ %he limits of forest lands and national par3s %he ongress shall, as soon as possible, determine by law the specific limits of forest lands and national par3s, mar3ing clearly their boundaries on the ground! %hereafter, such forest lands and national par3s shall be conserved and may not be increased nor diminished, e+cept by law! %he ongress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas!" # Article E--, 0ection C oncerned with the rapid degradation of $hilippine forests in the last few decades, the drafters of the &'() onstitution specifically provided for the identification, delineation and demarcation of the country9s remaining forests! %he $hilippines only has about (66,666 hectares left of its old# growth forests, less than A I of the country9s land area! %o thin3 that barely &66 years ago, there were about >6 million hectares of these forests! %here have been numerous bills filed in ongress to fulfill the constitutional mandate, all of which remain pending to this day! %he political resistance stems from the apprehension that lands classified as forest landsGwhich, by legal definition, should be more than 16I of the country9s land areaGwill be totally e+empt from cultivation and use! %here is an urgent need to formulate a land tenure policy based on the concept of an ecological encumbrance! %his concept derives its legal basis from the law that land with a slope of more than &(I must be 3ept in good vegetative condition! %his law predates the &'() onstitution and provides that@ 4ands eighteen percent 8&(I/ in slope or over which have already been declared as alienable and disposable shall be reverted to the classification of forest lands by the 7epartment 2ead, to form part of the forest reserves, unless they are already covered by e+isting titles or approved public land applications, or actually occupied openly, continuously, adversely and publicly for a period of not less that thirty 8A6/ years as of the effectivity of this ode, where the occupant is qualified for a free patent under the $ublic 4and Act@ $rovided, %hat said lands, unless already part of a well# established community, shall be 3ept in a vegetative condition sufficient to prevent erosion and adverse effects on the lowlands and streams@ $rovided,
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Further, %hat when public interest so requires, steps shall be ta3en to e+propriate, cancel defective titles, reject public land application, or eject occupants thereof!" A/ -ndigenous cultural communities %he 0tate, subject to the provisions of this onstitution 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! %he ongress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and e+tent of ancestral domain!" # Article E--, 0ection 1 %here are about two million members of indigenous cultural communities in the $hilippines! %he onstitutional provision recogni.ing the importance of the country9s cultural heritage has been translated into law, the -ndigenous $eople9s =ights Act 8-$=A/! %his law recogni.es the rights of the cultural communities to their ancestral lands, and to approve any activity that is to be underta3en within those lands! -t appears that the indigenous peoples of the $hilippines have a claim that is more closely lin3ed to the concept of communal ownership! C/ %he social function of property %he use of property bears a social function, and all economic agents shall contribute to the common good! -ndividuals and private groups, including corporations, cooperatives, and similar collective organi.ations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the 0tate to promote distributive justice and to intervene when the common good so demands!"# Article E--, 0ection ? %his provision stresses that, in the use of property, certain limitations can be imposed for the common good! -t is an additional legal basis for the concept of an ecological encumbrance when crafting a proper land use and tenure policy for forest lands, national par3s and watershed areas! %his constitutional provision can be highly potent when used creatively to advance the cause of ecological common good!" 1/ %he preference for Filipinos %he ongress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citi.ens of the
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$hilippines or to corporations or associations at least ?6 I of whose capital is owned by such citi.ens, or such higher percentage as ongress may prescribe, certain areas of investments! %he ongress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos! -n the grant of rights, privileges, and concessions covering the national economy and patrimony, the 0tate shall give preference to qualified Filipinos! %he 0tate shall regulate and e+ercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities!" # Article E--, 0ection &6 %here are certain areas of investment reserved for Filipinos, businesses that have a strong public interest character, such as mass media, communications, transportation, and the utili.ation and development of the country9s natural resources! %his is grounded on the premise that the Filipino owners of these public#interest enterprises will be more caring and considerate of the national interest of the $hilippines than a foreigner whose sole motive is economic profit! -t is also grounded on the belief that Filipinos should have a preference in the enjoyment and benefits of the natural resources found within their territory! For ea"h one) a role an* a responsi+ilit, ?/ Ecological considerations in agrarian reform %he 0tate shall, by law, underta3e an agrarian reform program founded on the right of farmers and regular farm wor3ers, who are landless, to own directly or collectively the lands they till or, in the case of other farm wor3ers, to receive a just share of the fruits thereof! %o this end, the 0tate shall encourage and underta3e the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the ongress may prescribe, ta3ing into account ecological, developmental, or equity considerations, and subject to the payment of just compensation! -n determining retention limits, the 0tate shall respect the rights of small landowners! %he 0tate shall further provide incentives for voluntary land# sharing!" # Article E---, 0ection C Endowed with rich soil and a favorable climate, the $hilippines is basically an agricultural country, but with a highly uneven distribution of land ownership! %his is a spillover of the encomienda system of the 0panish colonial days, when large tracts of public land were granted as private property to 0panish nationals who settled in the $hilippines as an early form of political patronage! %hey were rewarded for having settled in what was
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then considered a desolate place in the East, or for services rendered to the government or to the Jing of 0pain! %o this day, many of the old#rich Filipino families rely on landed property, which they acquired and farm as haciendas! 0ome owned lands located near the urban areas, and thus converted their farmlands into valuable commercial and residential real estate! ,a3ati, $asig and Alabang were once large haciendas of families that trace their roots to 0panish ancestors! %hrough several Administrations, dating bac3 to &'?A, numerous efforts for the redistribution of land were underta3en! 7uring the ,artial 4aw years under former $resident Ferdinand ,arcos, one of the first presidential decrees he issued was to free the farmer from the bondage of the soil" and to give land to the landless!" -n &'((, among the earliest pieces of legislation enacted by the restored ongress was the e+panded version of this agrarian reform program, 3nown as the omprehensive Agrarian =eform 4aw 8 A=4/! ,any abuses have since been committed in the name of agrarian reform! At the pea3 of the real estate boom, the 7epartment of Agrarian =eform 87A=/ gained notoriety for its indiscriminate conversion of farm lands for non#agricultural uses, for an illicit fee! 0o also is the anomalous policy of using the number of hectares distributed as an indicator of the department9s success! %his policy ma3es for haste in the distribution of lands, wherever they may be, even if they are in protected areas! %a3ing large tracts of land from watershed areas, national par3s, and public forest lands and parceling them out into small agricultural lots would not be ecologically sound! )/ $referential use for subsistence fishermen %he 0tate shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore! -t shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and mar3eting assistance, and other services! %he 0tate shall also protect, develop, and conserve such resources! %he protection shall e+tend to offshore fishing grounds of subsistence fishermen against foreign intrusion! Fish wor3ers shall receive a just share from their labor in the utili.ation of marine and fishing resources!" # Article E---, 0ection ) 0ubsistence fishermen are those whose catch is generally only able to feed
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their individual families, without any significant surplus! %hey are also called marginal fishermen! %his legal definition was an issue in a case where an ordinance was questioned for being unconstitutional! %he ordinance, which established a closed season" for the e+port of certain species of live fish from the $rovince of $alawan for five years, was upheld by the 0upreme ourt as valid and constitutional! %he petitioners, pretending to be self#described subsistence fishermen, were found by the ourt to be simply a private association of marine merchants" and were not considered marginal fishermen as intended by law! %he ourt noted that since the onstitution does not specifically provide a definition, the terms marginal" and subsistence fishermen" must be interpreted in the general and ordinary sense@ A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by e+isting price levels is barely sufficient to yield a profit or cover the cost of gathering fish, while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood! 0ection &A&8p/ of the 4ocal Government ode 8=A )&?6/ li3ewise defines a marginal fisherman as limited to the sale, barter, or e+change of agricultural products produced by himself and his immediate family!" %he ourt held that the onstitutional provision relied upon by the petitioners was primarily intended not only as a guarantee for the communal use of the fishing ground for subsistence fishermen, but also as a direction for its conservation and protection! (/ %he rights of women %he 0tate shall protect wor3ing women by providing safe and healthful wor3ing conditions, ta3ing into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to reali.e their full potential in the service of the nation! # Article E---, 0ection &C -n the field of environmental protection, the role of women is significant! -n the rural areas, while men till the farm, women gather firewood, collect water, and still have to care for the children, coo3 the food and 3eep the house in proper wor3ing order! -f women don9t have too many children and some amount of free time is made available to them, the opportunity to engage in productive services is great! ,ost of all, women have the power to determine the population of their respective families!
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'/ 2ealth %he 0tate shall adopt an integrated and comprehensive approach to health development which shall endeavor to ma3e essential goods, health, and other social services available to all people at affordable cost! %here shall be priority for the needs of the underprivileged sic3, elderly, disabled, women, and children! %he 0tate shall endeavor to provide free medical care to paupers!"# Article E---, 0ection && %his is one of the social development provisions of the onstitution that ma3es health care available and affordable! %he initiative to ma3e generic drugs widely available is one of the efforts towards this goal! %he initiative to revive and enhance traditional and alternative medical practices also has its constitutional moorings in this provision! &6/ %he autonomy of local governments %he 0tate shall ensure the autonomy of local governments!" #Article --, 0ection >1 %he territorial and political subdivisions shall enjoy local autonomy!" # Article E, 0ection > *ne of the interesting provisions in the 4ocal Government ode of the $hilippines passed in &''& is the requirement to consult with, and see3 the approval of, the local legislative council for any potentially polluting project proposed in a certain locality! %o this day, national projects are still imposed on local government officials even without the necessary approval of the local council! %his issue is ripe for judicial resolution and guidance! -n the event the issue rears its head again, it is necessary for the legal advocate to place the legal issue within a constitutional framewor3 using the above provisions as its anchor! %he 0upreme ourt is a very busy court with thousands of pending cases! -t does not wish to unnecessarily ta3e up the time of its esteemed members on simple legal issues! %hus, many of the attempts to elevate cases to the 0upreme ourt, especially when the issue involves a simple legal question, end up with the case being dismissed outright! &&/ %he role of people9s organi.ations
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%he 0tate shall respect the role of independent people9s organi.ations to enable the people to pursue and protect, within the democratic framewor3, their legitimate and collective interests and aspirations through peaceful and lawful means! $eople9s organi.ations are bona fide associations of citi.ens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure!" # Article E-K, 0ection &1 *ne of the singular achievements of the post#&'(? era was the rise in the number and e+tent of participation of people9s organi.ations, members of civil society who organi.ed themselves to be heard! -n turn, this democratic space resulted in greater interest in and awareness of environmental issues! *ne of the principles of governance is that it ta3es two to tango! %here are always two players in the game of governance@ the government and the citi.ens! Good governance is when both not only intersect but also overlap almost completely! 5ad governance is when the two spheres are too far apart from one another! %he complete overlap of both spheres is, of course, the ideal! -t is in this condition that the observation on government by philosopher 2! 7! %horeau finds reali.ation@ %he best government is that which governs the least!" PART II: Philippine Environ#ental La( Sub: The conduction of environmental impact assessments, the empowerment of a pollution board, and clear guidelines on toxic waste disposal are among the significant environmental provisions in Philippine law -F 4AW is to be an effective guide to human behavior, it must be understood by every man, woman and child! A law that cannot be understood cannot be made to wor3! -n the wa3e of the &')> 0toc3holm onference on the 2uman Environment, the $hilippine Environmental $olicy was passed by then $resident ,arcos! %he Environmental $olicy recogni.ed the need for man and nature to be in harmony with one another! %his was a departure from the former concept of nature simply being the object of man9s control! -t is hereby declared a continuing policy of the 0tateG%o create, develop, maintain and improve conditions under which man and nature can thrive in
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productive and enjoyable harmony with each other:%o fulfill the social, economic and other requirements of present and future generations of Filipinos!" # 0ection &, $7 Bo! &&1& -n pursuing this policy, it shall be the responsibility of the Government, in cooperation with concerned private organi.ations and entities, to use all practicable means:and fulfill the responsibilities of each generation as trustee and guardian of the environment for succeeding generations!" # 0ection >, $7 Bo! &&1> %his environmental policy incorporated the sense of responsibility and obligation of today9s generation to act as trustees for the benefit of future generations! %he policy also reali.ed that man9s activity has an impact on the natural environment! 2ence, there was a need to measure its impact before actually underta3ing an activity! %his led to the introduction of the Environmental -mpact Assessment 8E-A/ system! %2E $hilippine Environment ode, meanwhile, provides a set of comprehensive guidelines for managing the different environmental components, including air, water, land, natural resources and waste! -t is the legal wellspring that the 7EB= may draw from for the formulation of the implementing rules and regulations! Con"erns of lan*) air an* (ater &/ <pgrading water quality Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall ta3e such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards! # 0ection &), $7 &&1> -t shall be the responsibility of the polluter to contain, remove and clean up water pollution incidents at his own e+pense! -n case of his failure to do so, the government agencies concerned shall underta3e containment, removal and clean#up operations and e+penses incurred in said operations shall be charged against the persons andLor entities responsible for such pollution!# 0ection >6, $7 &&1> %he first part of this law is an e+pression of the polluter pays" principle@ Fou pollute, you clean up! %he second part only says that where the polluter cannot clean up for reasons of incapacity, ban3ruptcy, absence, and others, it
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is the obligation of the government to underta3e the clean#up, and then later, collect whatever it can from the polluter! %he principal policy objective of the law is that the body of water must be cleaned up as soon as possible! %he other section, 0ection &), is even clearer! -t says that where a body of water is dirty, it is the obligation of the concerned government agencies to clean it up! -n the case of a heavily polluted canal, can a citi.en write a letter to the local government to as3 them to clean up the canalH Why notH First, a citi.en has every right to write and complain to his ,ayor on a matter of public welfare! 0econd, a new law on solid waste management e+pressly gives the citi.en the right to complain, and even sue the ,ayor if he fails to act on the complaint! >/ 4and use planning %he 4and <se 0cheme shall include among others, the following@ M A science#based and technology#oriented land inventory and classification systemD M A determination of present land uses, the e+tent to which they are utili.ed, underutili.ed, rendered idle or abandonedD M A comprehensive and accurate determination of the adaptability of the land for community development, agriculture, industry, commerce and other fields of endeavorD M A method of identification of areas where uncontrolled development could result in irreparable damage to important historic, cultural, or aesthetic values, or natural systems or processes of national significanceD M A method for e+ercising control by the appropriate government agencies over the use of land in areas of critical environmental concern and areas impacted by public facilities including, but not limited to, airports, highways, bridges, ports and wharves, buildings and other infrastructure projectsD M A method to ensure the consideration of regional development and land use in local regulationsD M A policy for influencing the location of new communities and methods for assuring appropriate controls over the use of land around new communitiesD M A system of controls and regulations pertaining to areas and development activities designed to ensure that any source of pollution will not be located where it would result in a violation of any applicable
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environmental pollution control regulationsD and M A recommended method for the periodic revisions and updating of the national land use scheme to meet changing conditions!" # 0ection >A, $7 &&1> 4and use planning is the first step to all environmental management! %he law says that it must be scientifically#based and technology#oriented toward a rational and efficient use of 8the/ land!" %his simply means, for e+ample, that steep slopes should not be classified as residential, commercial, or industrial .ones, but as a forest or watershed area! ,oreover, if the sloping land must be classified as agricultural, proper safeguards must be provided for by .oning to ensure that massive erosion is prevented! %o be scientifically#based" also means that wetlands and bogs are properly identified! 0cience tells us that these are the aquifer recharge .ones and must therefore be preserved as an open area, planted with trees and other forms of vegetation to hasten absorption of the surface and rain waters! -f these wetlands are .oned as a residential or commercial area, they will be paved over with concrete and we will lose the water supply from underground that must be replenished! <nder the pervasive police power" of the 0tate, the use of private property may be regulated for the common welfare! 0o long as the restriction of use is not total and leaves the owner with some beneficial use of the property, the regulation by the 0tate is not tantamount to ta3ing private property! -f, because of the regulation, the owner is completely deprived of any form of use and benefit, the 0tate is obliged to compensate the owner for the value of the property ta3en! -f, for e+ample, a local government were to .one an area as agricultural, even if it is in the center of the city, there would be no ta3ing" of the property because it is still useful as agricultural land! 2owever, if the local government were to declare it as a permanent forest or wilderness area, it would have to pay the owner the value of his property because then, the property would be of no economic benefit to him! What if an enlightened local government was to .one patches of land in the heart of the city as agricultural landH %he local government could very well justify it as part of the need to decongest the city and to provide it with more open spaces and greenery in order to improve the city9s air quality! Any court of law would uphold the ordinance as a valid e+ercise of police
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power in pursuit of the common welfare! %he ourt would also say that there is no ta3ing" of the property inasmuch as the property still has some beneficial use to the owner! 2e could cultivate it as an herbal or spice garden, for e+ample! %here are other ways of approaching political opposition and softening the beachhead of resistance to environmental initiatives! First is proper legal mar3eting, the art and science of selling the law or the good behind the law! 0econd is the use of economic instruments! For e+ample, property ta+es on commercial establishments may be raised and the revenues derived from it used to offset the realty ta+es lost by declaring a parcel of land in the city as agricultural instead of commercial, and to e+empt the land owner from payment of any form of realty ta+! =evenue can also be used to raise more money to pay the landowner a subsidy as a form of rent for 3eeping the area open and well#planted, and to help the lot owner mar3et his produce! A/ Financial grants and incentives Financial assistanceLgrant for the study, design and construction of environmental protection facilities especially for waste disposal in favor of cities, municipalities, small and medium#scale industries may be granted on a case#to#case basis subject to such conditions as may be imposed by the ouncil!" # 0ection 1), $7 &&1> %his section authori.es the Government to prepare a menu of financial and other incentives! While the provision apparently relates only to solid waste management, it is possible to apply it widely enough to encompass other environmental concerns! Bote that the wording of the law is@ assistanceLgrant for:environmental protection facilities especially for waste disposal:!" -n legal interpretation, the word especially" means that solid waste is only one of the environmental protection facilities" for which government can give incentives, and certainly not the only one! C/ Waste management strategies : to encourage, promote and stimulate technological, educational, economic and social efforts to prevent environmental damage and unnecessary loss of valuable resources through recovery, recycling, and re# use of wastes and waste products :!" # 0ection C> 8b/, $7 &&1> %he various approaches for efficient waste management are outlined in the law, among them reduction, recycling and incineration of waste as well as
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other ecologically sound waste disposal methods! %here are those who cite the lean Air Act of &''' as banning incineration, hence having the effect of repealing the above provision! Bothing can be further from the truthD incineration is still an option for waste disposal under the law! A closer reading of the provision in the lean Air Act will indicate that contrary to common perception, a proper incineration method is not banned if it complies with internationally accepted standards! An environ#ental feasi+ilit, st *, %he Environmental -mpact Assessment 8E-A/ is to the environment what a financial feasibility study is to a business venture! -t is a study and planning tool to enable project proponents to thin3 through the environmental impact of their proposed project! %he impact of a mining operation, for e+ample, will include such considerations as the e+cavation and removal of soil, earth and ore that could lead to erosion, the mine wastes and to+ic and ha.ardous chemicals that must also be properly disposed of, and others! An E-A would have to e+amine and assess these impacts, and provide measures to either prevent them, or at least mitigate adverse effects on the human population and on the natural environment! %he E-A applies to industrial plants, as well! %he fumes they emit, the waste water they discharge, and even the patch of earth to be paved over with concrete are some of the environmental effects that must be anticipated! Although these are not normally included in the computation of the financial costs" of the project, they are nevertheless costs" that must be accounted for! All this must be done in order to determine the amount of natural resources needed to establish and operate the project, the actual price of the product to be sold, the long term profitability of the operation, and whether or not the project is ma3ing a real contribution to the natural wealth!" -n the ma3ing of cement, for e+ample, the raw material is limestone, a non# renewable mineral resource! %his will have to be mined somewhere, then transported to the cement plant, which will, in turn, process it into cement! %he manufacturing process also has an impact on the environment because of the dust generated by the procedure! %he same holds true for a power plantD the dust and soot from the burning of coal or oil must be disposed of! Everything has to go somewhere! %he regulatory instrument used to ensure that the environmental impact of a proposed project has been e+amined and assessed is 3nown as the Environmental ompliance ertificate 8E /! 0trictly spea3ing, the E is
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not a certificate of compliance with environmental standards! -t is only an assurance that the proponent has complied with the process of assessing the environmental effects of the proposed project! %he E also, in effect, certifies that according to the proponent, the proposed project presents no adverse environmental impact! As in the case of many regulatory tools, the E-A and E system in the hands of government bureaucrats has become too unwieldy! Frustration with the e+cessive emphasis given to the preparation, review, and issuance of the E has been li3ened to the preparation and defense of a doctoral dissertation! *nce issued, however, the monitoring of compliance is often left to chance! %o evaluate the environmental impact of a project, they are divided into two@ environmentally#critical projects" 8E $s/ and projects in environmentally critical areas" 8E A/! A mining enterprise or a power plant is, by its very nature, e+tractive and a cause for pollution! %hus, it is classified as an environmentally#critical project!" *n the other hand, a project may not be environmentally critical per se, but because it is to be located in an environmentally critical area, the project needs an E-A study! An e+ample of this is a housing project, hotel or resort facility! -n and of themselves, they are not environmentally critical! 2owever, because they are proposed to be located in, say, in a mountainous area 3nown for heavy erosion, or near an earthqua3e fault, they must undergo an E-A! E+cept for a few refinements on the E-A law, no new legislation is necessary to streamline and reform the present system! After all, in the final analysis, what is important is not the permit, 8the so#called E "/, but the actual compliance with the conditions stated in the environmental certificate! Efforts to streamline and strengthen the E-A#E system must incorporate e+peditious processing and issuance based on a rational land use plan, accountability by the budget and policy#ma3ing authorities of the enterprise 85oard of 7irectors, hairman, hief E+ecutive *fficer/, the delegation of monitoring to local governmentsD and the proper and forceful handling of violations! The la( on poll tion "ontrol -t is said that the first recorded stirrings of pollution control in the $hilippines may be traced to the 0panish 4aw of Waters of &(??, which
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stated thus@ When any industrial establishment contaminates the waters used with substances or properties no+ious to the public health or to navigation, the Governor shall order an e+pert investigation to be made, and if it be found that harm is being done, he shall direct the suspension of such industrial operations until the owners adopt a suitable remedy! %he costs and e+penses of this investigation shall be paid by the person ma3ing the complaint if it should turn out to be without foundation, and in the other event by the owner of the establishment!" -n post#colonial times, the first comprehensive law on pollution was the Bational Air and Water $ollution ontrol 4aw of &'?C! -n &')?, it was revised by the Bational $ollution ontrol 7ecree! 4aws have since been passed on the different areas of pollution concerns ranging from to+ic wastes, protected areas and air pollution to solid waste management, and wildlife conservation! $ollution is defined as the changes in the physical composition of air, water or land that would render it harmful to human health or adversely affect its use! Air that is unfit to breathe, such as the air of ,etro ,anila, is an e+ample of polluted air! Water that would cause cholera or s3in diseases is polluted water! At its best, a river must be fit for bathing, recreation, or fish propagation! %he $asig =iver, however, is so dirty that is way below established standards! %he presence of bacteria renders the water unfit for any form of contact recreation! -n fact, the $asig =iver and almost all of the rivers of ,etro ,anila are classified as biologically dead and incapable of sustaining aquatic life! 5y common usage, sewage generally refers to the liquid wastes generated by commercial and industrial establishments as well as from residential houses! -t is also understood to mean waste waters", i!e!, water that is thrown away by human beings after use! <ntil recently, conventional thin3ing was of the belief that water supply was limitless! %he clear implication of this 3ind of thin3ing is that water is so plentiful we can afford to waste it! %hus, the term waste water!" -f we should continue to waste water, the rules of basic decency require that the least we can do is to clean it up before we throw it away into a larger receiving body of water! *therwise, we will pollute the receiving water body, be it a river or the sea! %he fact that ,etro ,anila alone, with its
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almost &6 million inhabitants, disposes of about five million gallons of raw sewage into ,anila 5ay is proof of the virtual absence of any sewage treatment in the entire metropolitan area! %here are only three functioning sewage treatment plants in ,etro ,anila, with a capacity of only about &6I of the entire sewage outfall! %he Americans built one at the turn of the >6th century for the ity of ,anila with a capacity of only &16 cubic meters per day! %he other two sewage treatment plants are in the two high#end commercial and residential comple+es in the rich parts of the cities of ,a3ati and ,untinlupa! %he $ollution Adjudication 5oard 8$A5/ is the successor agency of the Bational $ollution ontrol ommission 8B$ /! %here is, however, a significant difference between the two@ While the B$ was an agency with its own full#time staff and complement of technical personnel, the $A5 is a part#time body that e+ercises quasi#judicial powers, or has the power to act li3e a judicial tribunal or a court! 5eing a quasi#judicial body" has its advantages in the hearing procedures and in the decision#ma3ing process in pollution cases! First of all, the agency is not bound by the strict rules of judicial evidence and procedure! For this reason, the process can be much faster than that of a court! 0econdly, the amount of evidence needed to support a case for pollution before the $A5 is not as strict as the standard of proof beyond reasonable doubt" required in criminal cases! *nly substantial evidence" is required! %his means that there must be some evidence to support the allegation of pollution and proof that the pollution comes from a particular source! While the amount of evidence need not be overwhelming, there must be a connection between the source 8the cause/ and the consequence 8the impact/! %he abbreviated nature of the $A5 proceedings is necessary because, more often than not, human health is at sta3e! -n the face of possible danger to human health or to the environment, one need not wait for absolute scientific certainty before ta3ing action! %he $A5 therefore e+ercises certain powers@ &! %he ex parte power to stop pollutionG-n line with this precautionary principle, when there is a finding that the pollution level poses a threat to human, animal, or plant life, or that it e+ceeds the ma+imum standard allowed by law, the $A5 has the power to issue an ex parte order 8without a full#blown hearing/ directing the discontinuance of pollution or the
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temporary suspension of the operation causing the pollution! %his power has been questioned before the $hilippine 0upreme ourt for allegedly violating the due process clause of the onstitution! -n what may well be the first articulation of the precautionary principle and the polluter pays" principle in $hilippine jurisprudence, the 0upreme ourt upheld these principles! %he ourt said that this was a legitimate e+ercise of the 0tate9s pervasive police power" to protect public health and to pursue the general welfare of its citi.ens! >! %he power to issue permits and collect feesG%he $ollution ontrol 4aw has been viewed as outdated by many, including people in the very agency tas3ed to implement the law! %he common perception is that the present law does not give the regulatory agency the power to introduce economic incentives and so#called mar3et#based instruments such as user fees, pollution charges and the li3e! 2owever, the law says that the government agency has the authority to issue, renew, or deny permits, under such conditions as it may determine, and to collect reasonable fees and charges!" 4et us say that the 0ecretary of the 7epartment of Environment wants to implement the polluter pays principle" in order to ma3e people aware of the third law of ecology, that nothing is for free! %he added revenue for the government would go a long way in strengthening the agency9s capability to monitor and enforce anti# pollution laws! -n order to lay the legal basis for this policy initiative, it is important that a scientific study be conducted to determine the amount of the pollution charge or environmental fee! %he emerging science of Environment and Batural =esources Accounting can help us determine the replacement cost" or clean#up cost" of anticipated discharges and pollution levels! %his policy objective must, of course, be properly e+plained to the sta3eholders in an appropriate legal mar3eting campaign! %hey must not only understand the purpose of a project, they must also appreciate the reason why it must be done! *ne of the ways by which resistance can be softened is to be able to convey a clear idea of what government is going to do with the monies earned from a program! -t is not enough to say that these will go to the government! What
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if, for e+ample, part of the revenues earned from a program were to be used to put up a sin3ing fund for the sta3eholders9 benefit, in the form of a fund to co#finance pollution control systemsH %he resistance would vanish! Government can argue that the power to assess fees is specifically granted by the law, which states that the government has the authority to collect reasonable fees and charges!" %he amount will be based on the painsta3ing science of Environment and Batural =esources Accounting, and will simply be an implementation of the polluter#pays principle," a principle articulated in international environmental agreements to which the $hilippines is a party! %he polluter#pays principle has found e+pression in $hilippine ourts! -n what may be the first judicial pronouncement in $hilippine jurisprudence on the need to internali.e" environmental costs of the manufacturing industry, the 0upreme ourt declared that industrial establishments are not constitutionally entitled to reduce their capital costs and operating e+penses and to increase their profits by imposing upon the public threats and ris3s to safety, health, and general welfare and comfort, 8and/ by disregarding the requirements of environmental statutes and their implementing regulations!" A! %he arbitration of damagesG-f the environmental elements of land, air, and water have been damaged and will need to be rehabilitated or replaced, what governmental agency decides on the matterH -s it the courts of law or the 7EB=H %hat practical and legal issue has never been brought before the courts! 4i3ewise, the power to assess environmental damages and to require polluters to pay and clean up has not been tried by the government with definite determination! %he court is not the proper venue to decide on environmental damages! -t has neither the technical staff nor the particular e+pertise to underta3e such a tedious and time#consuming e+ercise! %hat leaves us with only one option@ the government agency! Po(er a$ainst poll ters %he law states that the $A5 is the arbitrator for reparations or restitution of the damages and losses resulting from pollution!" %he word arbitrator" does not refer to the voluntary system of arbitration! -t is believed that the law intended to grant the 7EB= 8of which the $A5 is a part/ the power to investigate the level of pollution, the e+tent of the damage caused, and the
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amount needed to repair, restore and rehabilitate the same! %he amount must be in addition to the fines paid! %he fine is only a form of penalty, but the assessment for environmental damage is intended to restore the ecosystem damaged! %he clean#up provision mentioned earlier says that any person who pollutes a body of water is responsible for its clean#up! -f he cannot do it, government will and charge him the costs! What agency is in the best position to determine the clean#up costs if not the 7EB= itselfH C! Kisitorial powersG*ne of the powers necessary to effectively enforce Environmental 4aws is the power to enter the premises of an industrial or commercial establishment! %his includes the power to inspect its operations and e+amine records relevant to the pollution discharges! %his is 3nown as the visitorial powers" of government! Bote, however, that this does not include the power to enter into and inspect residential premises under normal circumstances! %he home is protected against searches and sei.ures without a search warrant issued by a court of law! 2owever, if the residence is also being used as a commercial or manufacturing establishment, the mantle of protection is lifted! 1! Nudicial reviewGBo appeal to the ourts is allowed until the party aggrieved by the decision of the $A5 has e+hausted administrative remedies before this quasi#judicial body! An appeal ta3en from the action of the $A5 must be filed in the ourt of Appeals in the same manner as appeals are ta3en from a decision of the =egional %rial ourt! -n &'((, the $A5 found the dumping of the mine tailings into the alancan 5ay of the $rovince of ,arinduque unacceptable, and thereafter ordered the cessation of the firm9s operations! 2owever, instead of filing an appeal with the ourt of Appeals as provided by law, the company filed its appeal with the *ffice of the $resident! %a3ing over the case, the *ffice of the $resident reversed the $A59s decision and allowed the mining company to continue operating! Although the 7EB= did not question the decision of the *ffice of the $resident at that time, it is believed that the procedure used by the mining company was erroneous! %a3ing into account the official proprieties, it would have been preferable if the 7EB= had advised the *ffice of the $resident not to ta3e cogni.ance of the case! %he proper legal procedure was for the office of the $resident to instead forward the case to the ourt of
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Appeals for proper judicial disposition! %hat controversy did not die down! About eight years later, on ,arch >', &''?, the dam that held the mine tailings burst and spilled >!1 million tons of mine wastes into the 5oac =iver of the $rovince of ,arinduque! 4ocal officials are still in a dilemma as to what to do about the disaster! ?! =emedy against a cease#and#desist orderGWhat is the remedy of the person or establishment against whom a cease#and#desist *rder 8 7*/ has been issuedH 0uch person or establishment can have it temporarily lifted by filing a ,otion for =econsideration, which must include detailed plans of the pollution control equipment to be installed by the establishment, a statement of the interim measures that the establishment will adopt in order to reduce and mitigate the pollution, the posting of a performance bond equivalent to >1I of the cost of the total pollution control program, the appointment of an accredited $ollution ontrol *fficer 8$ */, and a notari.ed underta3ing signed by the respondent or its duly empowered managing head to comply with the conditions set by the 5oard! )! E+clusive jurisdictionG%he 7EB=, through the $A5, has the e+clusive jurisdiction to hear and decide pollution cases! %hus, in one of the early cases involving the issue of pollution, the ourt refused to proceed with a criminal action filed against an alleged polluter without prior determination by the administrative agencyGthen the Bational Air and Water $ollution ommissionGof the e+istence of pollution! %he determination of the e+istence of pollution requires investigation, public hearings and the collection of various information relating to water and atmospheric pollution! %he definition of the term pollution" in itself connotes that the determination of its e+istence requires speciali.ed 3nowledge of technical and scientific matters which are not ordinarily within the competence of Fiscals or of those sitting in a court of justice!" 8,ead v! Argel/ %he principle was reiterated in the $A5 v! ourt of Appeals case, where the court said that it is now within the province of the $A5 to ma3e determinations of pollution! Again, this was further clarified by a later case wherein the power of the local mayor to shut down an allegedly polluting factory was put in issue! -n that case, the ourt held that it was not within the power of the ,ayor to decide on the pollution issue of an industrial establishment! %he sole power to do so is vested by law in the 7EB=, of which the $ollution Adjudication 5oard is a part!
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-n this case, there appeared to have been some question on the quality of the evidence presented by the ,ayor! -t was also decided before the effectivity of the 4ocal Government ode! -n light of a subsequent ruling, which eloquently called upon local governments to e+ercise the requisite political will" in the battle against environmental degradation, it is believed that a similar case arising today would have a different result! Factors that could contribute to the possible difference would be the presence of a qualified environment officer in the 4ocal Government <nit with sufficient technical competence to determine the e+istence of pollutionD the proper evidence establishing the fact of pollutionD and the proper e+ercise of e+ecutive power by the ,ayor as supported by a resolution or ordinance of the local legislative council! Bothing catches the attention of concerned people better than a criminal case! Fet, in spite of the e+istence of criminal provisions in the pollution control laws, not a single officer of a company has been successfully prosecuted criminally for violation of the anti#pollution law! *n the part of the concerned officers, what can be their defenseH *ne is to present minutes of a 5oard ,eeting where the matter of pollution was discussed, and where a pronouncement was made to do something about the pollution! %hereafter, proof must also be presented that there was a deliberate or negligent act on the part of the responsible officer 8operations manager, supervisor or pollution control officer/ to ignore the policy or internal rules promulgated by the 5oard of 7irectors! *n the other hand, the concerned lower ran3ing officer can pass on the blame to the higher officers by claiming, for e+ample, that despite the policy promulgated, the 5oard did not authori.e any budget for the operation of the pollution control system! %he matter of criminal liability for pollution in $hilippine jurisdiction is still uncharted territory! %he filing of a criminal case against top#ran3ing officers of the establishment, however, would surely ma3e them sit up and listen! -t would also send a message to the other sectors of society and to the other industrial and commercial establishments whose environmental behavior needs to be modified! Poisons in o r +a"-,ar* %he industrial age has been characteri.ed by the e+tensive use of chemicals!
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%o ma3e steel, one needs hydrochloric and sulfuric acidD to ma3e gold, one needs cyanide and mercuryD to ma3e plastic one needs petroleum and chlorides! Even in the coo3ing of our food, we mi+ in different 3inds of chemical condiments, flavorings and seasonings! *ne of the efforts to control our environment involved the invention of 77% to 3ill off malaria#carrying mosquitoes! *nce hailed as a wonder drug that saved countless lives, 77% has since fallen into disrepute as a health and environmental ha.ard and is now hardly used in so#called developed countries! -n the boo3 Silent Spring, scientist =achel arson dramatically showed how man9s modern chemicals were having a disastrous impact on the natural environment! An interesting chemical element is chlorine! -t is one of the more pervasively used chemical elements in modern society, used in everything from plastics and water to refrigerants and cosmetics! -ndeed, one of the signal products of the >6th century is plasticGa malleable, ine+pensive and non#biodegradable substance! 0cientific evidence now shows that some compounds called organochlorines do not decompose when ingested into the human body! Beither are they discharged by the body as waste! -nstead, the chemical accumulates in the body fat and has been observed to e+hibit harmful effects on the reproductive system! %here is a growing body of evidence that sperm counts are now significantly lower, and se+ual organs in affected animals are getting smaller, inverted, or otherwise misplaced! %here is also growing evidence to show that these chemicals are disrupting the endocrine system responsible for reproduction! %hese are the chemicals that are now contained in the things that we use and the food that we eat! 2a.ardous wastes are the chemical wastes generated by manufacturing processes in the production of industrial and consumer goods! -ndeed, the volume of ha.ardous waste produced appears to be directly proportional to a country9s level of industriali.ation! %hus, industriali.ed countries such as the <0A, Napan, and some countries in Western Europe produce so much ha.ardous waste from their industrial processes that they are literally running out of places to throw them! -n fact, many of them are ready to pay high prices to poorer countries willing to accept their wastes! While they produce enormous volumes of wastes, they are unwilling to use their own territory as the disposal sites and e+pect others to accept them!
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A milestone in -nternational Environmental 4aw was the 5asel onvention on the ontrol of %ransboundary ,ovements of 2a.ardous Wastes and their 7isposal! %his was implemented in the $hilippines by way of the %o+ic 0ubstances and 2a.ardous and Buclear Wastes Act of &''6 8=epublic Act ?'?'/! At face value, the law appears to address both to+ic substances and ha.ardous wastes! %he policy is to regulate the use and distribution of chemical substances that may present an unreasonable ris3 to the health of the people or to the environment! -t is also the 0tate9s policy to restrict the importation, even in transit, of ha.ardous wastes into any part of its territory! A quic3 reading of the law indicates that much of the legal language is focused on chemical substances and imported ha.ardous wastes! =ules on ha.ardous wastes generated within the country are, however, quite vague! %his is a good lesson to remember in the crafting of an Environmental 4aw! A single sentence, or even a phrase, on the matter of locally generated ha.ardous wastes would have made for a clearer legal mandate! %here are two other lawsGthe Environment ode and the $ollution ontrol 4awGthat serve as fallbac3 legal basis in case the government9s authority to pass regulations on ha.ardous wastes is challenged! <nder this law, ha.ardous wastes are classified as substances without any safe commercial use or value, which are brought into the country for the purpose of dumping and disposal! %he importation of wastes is absolutely prohibited, and the violation carries with it a penalty of &>#>6 years imprisonment, e+emplary damages of at least $166,666, re#e+port of the wastes to the country of origin, and others! Bote that the operative words in the prohibition are waste brought into the country for dumping or disposal!" When the waste is brought here for recycling, it seems that the law and penal sanctions do not apply! 2a.ardous wastes are also manufacturing and industrial by#products, spent residue, waste, and consumer discards! 0een from this definition, the tetra#pac3 container of an orange juice drin3, plastic wrappers of candies, cans, bottles, and other discards may be classified as ha.ardous wastes! All industrial and manufacturing processes discharge industrial wastes that are, more often than not, ha.ardous in character! 2a.ardous wastes are
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characteri.ed as such because of their corrosive tendency, to+icity, inflammability, and reactivity! -t is estimated that the volume of ha.ardous wastes generated in the $hilippines each year is about >!C billion 3ilos, or some ?!? million 3ilos per day! Even a fraction of a gram of some of these wastes can cause injury or death! While the implementing rules and guidelines have been laboriously prepared by the 7EB=, compliance with the law is almost nil for a very simple reason@ E+cept for a few in#house incineration and to+ic waste facilities, there is virtually no facility available anywhere in the country capable of proper waste treatment and disposal! -ndustrial facilities and manufacturing concerns are now faced with a management dilemma@ %hey can no longer throw away their industrial and ha.ardous wastes anywhere, yet they have no alternative disposal site! Establishments are then forced to store ha.ardous wastes in their own premises, which are naturally limited in space and are not the proper storage sites for these wastes in the first place! %his is an accident waiting to happen! %here is a serious possibility such wastes causing a fire or lea3ing into the ground and into the aquifer! -n this event, the degree of damage can be tremendous! ,oreover, the escape of the fumes into the air! Fet, there appears to be no serious effort to address the need for a ha.ardous wastes infrastructure! Adding to the complication is a provision in the fairly recent lean Air Act of &''', which appears to ban the use of incineration! Bote the use of the words appears to ban!" A closer reading of the law shows that incineration is not prohibited and remains one of the technological options in addressing ha.ardous waste management! Ho( to han*le (ith "are 2a.ardous wastes are generally classified as medical wastes and industrial wastes! ,edical wastes such as used needles, gau.e and human body parts must be disposed of by the appropriate disposal system that would render them inert, harmless and non#contagious! -n the case of industrial wastes, it is possible for much of the ha.ardous waste generated by industrial processes to be recovered, re#used or recycled! 5y simply ta3ing time to rationali.e the 3inds of wastes and organi.e the various waste generators, a waste e+change program can be developed! ,ore often than not, the waste of one is the raw material of the other! %hus, only a very small portion of the industrial wastes may need to be subjected to high#intensity thermal
30

e+posure or other proper disposal technique! %here are several issues of concern with regards to proper ha.ardous waste infrastructure@ &! FinancingG%he cost of such a facility is considerable! *ne of the financing mechanisms available is the 5uild#*perate#and#%ransfer 85*%/ scheme for investments in public infrastructure! -t must be noted that there are a number of fiscal and ta+ incentives available for projects classified as environmental management facilities" under the -nvestment $riorities $lan 8-$$/ of the 5oard of -nvestments 85*-/! >! 4ocationG*ne of the principal difficulties of establishing a to+ic and ha.ardous waste 8%2W/ facility is its proper locationGgeologically, economically, and above all, politically! -t must be located on stable ground, far from an earthqua3e fault and from volcanic fire! 0ince practically all remaining available land is located in hilly areas, the choice of location can be quite tric3y! %he facility should be close to the sources of the industrial wastes! While it may be geologically and politically acceptable to establish it in remote islands near 5atanes or %awi#%awi, the transportation costs would not ma3e the option feasible! 2owever, these issues would be easy to resolve compared to the political dynamics of relocating such a project! An announcement by the government that it plans to put up a ha.ardous waste disposal facility in a certain town or city will immediately elicit howls of protest from its residents! -f the government is not firm in its decision, prospective investors will not want to touch the project with a &6#foot pole! $olitical will, as always, will be the main determining factor, and it must emanate from the top! %he 7EB= can help by softening resistance with proper information and education campaigns! *ne can point to facilities in 2ong Jong, 0ingapore, ,alaysia, the <nited Jingdom and other places! -n ,alaysia, to+ic and ha.ardous wastes are not referred to as such in order not to unduly alarm the residents! -nstead, they are called scheduled" wastes, i!e!, wastes that are the subject to a schedule or classification! Another aspect of the location issue is whether or not to put up a facility that is centrally located, or to ma3e it area#based! Area#based facilities may be more efficient and less costly for users of the facility since these would save on the transport costs! For e+ample, for the industrial waste generated in the provinces of avite and 5atangas, the facility could be located in any one of the provinces! %his applies the pro+imity principle" in waste management!
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-t will also soften the resistance of people in a particular place by removing the perception that they are being used as the to+ic dumpsite of other more progressive places! %he environmental and technical considerations are the easiest to address! ,uch of the ha.ardous wastes treatment technology is mature, environmentally sound, and has been in practice elsewhere in the world! A! %he need for strict legal complianceG%hen there is the issue of how to ensure compliance on the part of the industrial waste generators! -f the industrial firms cannot be legally compelled to use the %2W facility, the heavy investments made to put up the facility cannot be recouped! -t should be easy to ma3e industrial firms comply with ha.ardous waste laws! -n the first place, it is not in their financial interest to violate Environmental 4aws such as these! 0econdly, the industrial firms are themselves interested in availing of the services of the %2W facility, as they are running out of places to store their ha.ardous wastes! C! %he pro+imity principleG%his simply means that the disposal site of wastes must be as close to the source as possible! A management strategy based on this principle will not only reduce the costs and ris3s of transportation, it is also a matter of plain common sense! -f people were forced to dispose of their garbage right in their own bac3yard 8or in their own village/, they would begin to seriously thin3 of waste reduction, waste reuse, and waste recycling! $rovinces and cities are so eager to invite industrial investors into their localities for the jobs and revenue that will be generated! %hey must, however, also be ready for the responsibility of accepting the ha.ardous wastes that naturally come with the manufacturing processes! 5enefit" goes hand#in#hand with burden," an elementary principle in environmental management, as it is in life ! 1! A0EAB ooperationG*ne of the tightly 3nit regional associations in the international community is the Association of 0outh East Asian Bations 8A0EAB/! -ts present &6#country membership can certainly e+plore underta3ing a cooperative program of waste e+change! %oday, 0ingapore and ,alaysia have the necessary ha.ardous waste disposal facilities operated on world standards! %he $hilippines could send some of its wastes
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to the countries while accepting some of the wastes of other member countries for treatment and, perhaps, re#use! Following the truism that one man9s waste is another man9s resource, such a program would certainly enhance the cooperation of member states! -t would also lead to an increase in environmental trade and industry and increased e+change of technology and performance standards among A0EAB member countries! ?! $ublic access to recordsG%his is one area where the right to public information on constitutional provisions can be most useful and effective! $art of the people9s right to public information is the right of access to the records submitted by industrial establishments on the chemical substances used in their manufacturing processes as well as on the ha.ardous wastes discharged! -t is possible, therefore, for an environmental non#government organi.ation 8BG*/, or even an ordinary citi.en, to legally demand that an environmental agency produces the data on the 3ind and volume of wastes discharged by an industrial facility! As a general rule, the public should have access to information concerning chemical substances used by industrial establishments! %his must include safety data and data on emissions or discharges into the environment! %he government agency is required to ma3e the documents available for inspection or reproduction during normal business hours, e+cept when the same is privileged or is a trade secret! PART III: A*#inistration an* A*vo"a", Sub: The epartment of !nvironment and "atural #esources and its affiliate agencies must be at the frontline of environmental management, with help from environmental advocates and legal guidance from the $ivil $ode -B %2E not#too#distant past, natural resources were seen as free for e+ploitation and use by human3ind! %his paradigm was reflected in the very name of the government agency tas3ed with its management, the 7epartment of Agriculture and Batural =esources 87AB=/ in the &'?6s, and as the ,inistry of Batural =esources in the ;)6s and early ;(6s! -t was only in &'() that the word environment" was finally inserted into the name of

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the agency now 3nown as the 7epartment of Environment and Batural =esources 87EB=/! -t was created by virtue of E+ecutive *rder &'> passed by then $resident ora.on Aquino in &'()! %he paradigm shift was evident even in the very wording of the preamble and policy objectives of the law! Whereas the word e+ploit" was always a part of the mandate of natural resources management, nowhere is it now found in any part of the law creating the 7EB=! -nstead, such terms as sustainable use," renewal," development" and conservation" now appear as the applicable management standards! -t is to the credit of Filipino legislative craftsmanship that the term sustainable use" was already in our law before the 5rundtland ommission made the term sustainable development" popular! Insi*e the .ENR %he 7epartment9s mandate includes the inventory and classification of lands, development" of mineral resources, protection and conservation of par3s and wildlife, and the maintenance of air and water quality! -ssue has been ta3en over the fact that natural resources e+ploitation should not be the mandate of the very agency tas3ed with conservation! -t is argued that the 7EB= is not only a clear e+ample of a conflict of interest" situation, it is also essentially a contradiction of terms! %he main point of the argument is that the development of a natural resource" basically implies transforming the resource into money! -f this is the main priority of the government agency, all other considerations will tend to be brushed aside! %his was e+actly the attitude from the &'?6s to the mid#&''6s! %he other side of the argument is that the 7epartment that supervises the grant of licenses to e+ploit land, mineral, and forestry resources is in the best position to monitor the environmental performance of the persons and establishments to whom these are granted! -t has been argued that the tas3 of monitoring mine wastes and tailings belongs to the 5ureau of ,ines, a

34

bureau under the 7EB=, because the 7EB= has the power to suspend or cancel the mining permit in case of violations! 2owever, because of the co.y relationship between the regulators 8who also happen to be the grantors of the e+ploitationLdevelopment permits/ and the regulated 8the mining and logging industries/, a conflict#of#interest situation can easily arise! *ne has yet to see a mining company suspended or shut down by the 5ureau of ,ines because of the indiscriminate dumping of tailings! 7uring the heyday of copper mining, one of the largest copper mining companies in the world was located in entral $hilippines! Bo beep was ever heard from the government agency in charge of monitoring the mine waste disposal system of the company! -n fact, the agency did not even bother to enforce the law that required the restoration and rehabilitation of the mined#out areas! -t was not until after the company finally closed down because of the sharp drop in the price of copper that the environmental violations were noticed! -n August &''', a massive fish 3ill occurred in the %aOon 0trait, right beside the site that was the convenient dumping ground for the company9s waste! %he fish 3ill was caused by a large discharge of highly acidic water from one of the mining pits! After the news died down, so did any official interest on the part of the agency tas3ed with the mandate of mining development" and environmental management! %he reality in the structural set#up of the 7EB= is that the time and funds devoted to environmental protection is minuscule compared to the time and funds devoted to natural resources development!" 4and disposition and the resolution of land controversies alone ta3e up the bul3 of a 0ecretary9s time! Add to that the handling of mining rights, resolution of mining claims and controversies and supervision of forestry related matters, and you have a 7epartment hobbled by the sole concerns of natural resources

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development!" 0uch issues as solid waste management, land, air and water pollution, soil erosion, species e+tinction, and other environmental concerns go unaddressed! %he change in the approach to environmental administration is important not just because the words have changed! %he shift in the legal state of mind did not happen simply with a stro3e of a $resident9s pen! -t began almost a decade earlier, in Nune &')), with the passage of the $hilippine Environmental $olicy Act and the $hilippine Environmental ode and the creation of the former Bational Environmental $rotection ouncil! -n fact, the first stirrings of a global paradigm shift actually started with the &')> 0toc3holm onference on the 2uman Environment! What the &'() law achieved, however, was the formali.ation of the change in thin3ing, as well as the partial institutionali.ation of the agency that would have the primary mandate for its advancement! %he paradigm shift, however, is still ongoing! %he word partial" is deliberate! -f political will is best measured by the amount of financial resources allocated to an objective, the budget for environmental management is quite revealing! %he allocation for the 7EB= is less than &I of the entire national budget! Even more revealing is the fact that the budget for environmental management is only about AI of the budget of the entire 7EB=! Without creating a new abinet office, the paradigm shift to environmental management within the framewor3 of the e+isting institutional structure can be made by simply shifting the emphasis from development by e+ploitation" to development by conservation!" -n the matter of land classification and inventory, for e+ample, the government agency can closely e+amine the topographic map and contour of the area! -f part of the land is &(I in slope or over, the grant of land must contain a requirement to re#vegetate the land to such a condition as to prevent erosion!" -n the case of mineral resources and forestry utili.ation, the shift in emphasis can ta3e the form of declaring a moratorium on the issuance of mining permits or

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releasing des3#bound personnel into the field to underta3e close monitoring of mining companies9 environmental performance! 0o also can budgets and personnel be realigned for environmental management, par3s and wildlife protection, air and water quality protection, and the li3e! A (el"o#e *ele$ation *ne of the welcome developments in the 7EB= is the delegation of functions to the regional offices! %his is an improvement from the time when almost all of the functions were concentrated in the entral *ffice! %his move is long overdue, and should be pursued with greater vigor! As earlier noted, the $ollution Adjudication 5oard 8$A5/ is the agency with the tas3 to hear and resolve pollution cases! 2owever, its powers and functions have been so restricted that it is rendered inutile! 0tructurally, it is a part#time agency that only meets twice a month! -ts composition is faulty, counting among its ran3s very high#level officials, namely the 0ecretary of the 7epartment as hair, two <ndersecretaries, the 7irector of the Environmental ,anagement 5ureau, and three others appointed by the 0ecretary! %hese officials are heavily occupied with the day#to#day demands of their respective offices! %o saddle them with hearings of pollution cases, which are purely technical in nature, is to e+pect superhuman abilities from very human individuals! $olitically, the composition of the 5oard is highly vulnerable to the winds of the moment! %he 0ecretary designates all the <ndersecretaries, the E,5 7irector, and the three private sector representatives! 0ince the 0ecretary is a political appointee, it follows that whenever there is a new administration 8and thus a new 7EB= 0ecretary/, the entire composition of the 5oard changes! Any hint of independence by any of the <ndersecretaries or private sector representatives that run counter to the wishes of the 0ecretary could quic3ly result in the 5oard member9s replacement! While many of the pollution cases arise in the regions and provinces, the

37

$A5 is highly centrali.ed in ,etro ,anila! %his results in serious inefficiencies! For the private party involved in the pollution case 8either as complainant or as respondent/, it results in unnecessary costs! %he issue involved in a pollution case is mainly technical in nature, not legal! -n fact, the issue can be addressed only by a technical report showing whether the effluents or emissions of a particular entity are within the standard set by law! %o have a committee of seven people sit and decide what to do is literally ma3ing a mountain out of a molehill! %he $A5 is ripe for restructuring! *ne option is to delegate the hearing and decision#ma3ing, as well as the subsequent action, to the regional offices of the 7EB=! %he $A5 can then be left to simply becoming an appellate body! Another option is to ma3e the $A5 a full#time agency with members enjoying security of tenure! Fet another option would be to abolish the $A5 altogether and leave the handling of pollution cases to the regional offices! %here are important agencies attached to the 7EB=@ &! Bational ,apping and =esource -nformation Authority 8BA,=-A/GAll the mapping and surveying functions are now vested in this single agency! %he BA,=-A may also conduct and use research in remote sensing and satellite imagery, airborne scanning and radar, and other similar technologies! ,apping and resource inventory are some of the most important functions in the science of environmental governance! %he ability to 3now the parameters of resources is a necessary condition for protection! We cannot protect something if we do not even 3now where it is! <sing this agency effectively would enable those concerned to at least begin to 3now where and what is out there" that needs to be protected and conserved! -t is critical, therefore, that this be managed professionally and with utmost consideration for continuity! -nterestingly, the qualifications for the Administrator of this agency are not even provided by law! %his ma3es the position highly

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subject to the whims and caprices of the appointing power! >! Batural =esources 7evelopment orporation 8B=7 /G%he B=7 is the corporate arm of the 7EB=! -t is designed to afford some measure of financial fle+ibility to the government agency and enable it to underta3e pioneering commercial ventures! As a corporation, it can directly engage in projects with the use of innovative technologies for commercial production and propagation! For e+ample, the B=7 can engage in the tissue culture of rattan and bamboo, butterfly culture, orchid and other wildflower production and, of course, in the mar3eting of these products! %his is especially needed in areas where there is a need to develop alternative forms of livelihood to wean people away from e+tractive industries such as fishing and slash#and#burn farming! -n the matter of environmental management, the B=7 can serve as a catalyst to enliven the mar3et in pioneering environmental enterprises relating to solid waste management, domestic wastewater treatment, and industrial ha.ardous waste management facilities, and in training for environmental management systems! 2owever, the law was not intended to authori.e B=7 to go into the bottled water business, or into the food catering or construction businesses and similar non#pioneering commercial ventures! Bot only would it directly and unnecessarily compete with the private sectorD these activities are also outside the authority of the corporation! A! 4aguna 4a3e 7evelopment Authority 8447A/G%he 447A is another government agency attached to the 7EB= that performs both regulatory and corporate functions! -ts mandate is to develop and conserve the 4aguna 4a3e region, the body of water itself as well as its surrounding watershed area! The environ#ent an* the Civil Co*e %he ivil ode is the general law that governs the rules of human civility,

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and it contains relevant parts that can be used to further the cause of environmental protection! &/ Buisance A nuisance is any act, omission, establishment, business, condition of property, or anything else which injures or endangers the health or safety of othersD annoys or offends the sensesD shoc3s, defies or disregards decency or moralityD obstructs or interferes with the free passage of any public highway or street, or any body of waterD or hinders or impairs the use of property!G ivil ode, Article ?'C -n law, nuisance" is defined as the use of property or conduct that interferes with the legal rights of another, causing damage, annoyance, or inconvenience! %his is the basic cause of action of a person aggrieved in a pollution situation! Buisance is classified as nuisance per se and nuisance per accidens! An e+ample of a nuisance per se 8by itself/ is a prostitution den! 5y its very nature, this house is shoc3ing to the morals of common persons and violates basic standards of decency! *n the other hand, a nuisance per accidens is not offensive in and of itself! 2owever, because of its location or surrounding circumstances, it becomes a nuisance! A pigpen is not a nuisance if it is located far away from neighbors! 5ut a pigpen in a residential or commercial area or on the shoreline of a beautiful beach is a nuisance because of its location! A structure built on the sidewal3 of a street or in middle of a river is a nuisance because it obstructs the free passage of a public highway or the free flow of the water in the waterway! A public nuisance affects a community or neighborhood or any considerable number of persons, although the e+tent of the annoyance, danger or damage upon individuals may be unequal! A private nuisance is

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one that is not included in the foregoing definition!G ivil ode, Article ?'1 %he pigpen located in a commercial area is a public nuisance because it affects and offends the senses of a considerable number of people! 0o also are vendors9 stalls located on sidewal3s that obstruct the free flow of pedestrian traffic! A private nuisance is one that affects only a small group of people! A pigpen that is built right ne+t to the window of a person9s bedroom is a private nuisance that affects only the person who smells it day and night! Another e+ample of a private nuisance is the loud and late#night singing of a person that offends an immediate neighbor! >/ 4iability carry#over Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it!" G ivil ode, Article ?'? For simplicity, we will call this rule the principle of last touch!" Even if a person did not cause the pollution emanating from his property, he can be held liable by this provision of the law so long as he had the last touch!" %he successive owner is liable only if he has been informed of the e+istence of the nuisance or has actual 3nowledge of it and does nothing to abate or control it! %he successive owner can claim reimbursement and damages from the previous owner who caused the pollution, if he can still be found! 5efore buying a real estate property, especially if it was once an industrial area, it is important to conduct a basic environmental due diligence" study! Failure to underta3e such a study is tantamount to negligence! *ne of the festering environmental issues in the $hilippines is the question of liability on the part of the <0 Government for the to+ic waste it left behind in lar3 Air 5ase! -t appears that there is serious groundwater

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contamination in this military installation, resulting in suspected deformities and cancer#producing ailments among the children and residents of the surrounding community! Although this is a perfect e+ample of a public nuisance, it does not lend itself too easily to legal solutions! %he person or entity that caused the groundwater contamination is a sovereign country, and a powerful one at that! %he legal and practical difficulties of private individuals suing the <0 Government for damages in a local court of law using local law is, to say the least, quite difficult! What if a suit is brought against the $hilippine government for the abatement of nuisance, i!e!, for the clean#up of the contaminated soil and groundwater, and for damagesH %he principle of last touch" can be used as the legal basis! %he present owner of the property is the $hilippine Government, through the 5ases onversion 7evelopment Authority 85 7A/ or the lar3 7evelopment orporation, a government#owned corporation! As such, it is duty#bound to abate this nuisance! *ther legal provisions may also be used, such as the Environment ode9s provisions on water clean#up and upgrading! %he legal and the practical worlds are, however, quite different, and are divided by the yawning chasm of political will! While the legal recourse may be quite clear, the practical remedy is not that clear! Would the $hilippine government spend billions of pesos to clean up the contaminated land and water resources left by the former occupantsH And even if a group of individuals were to have a judgment from the 0upreme ourt ruling that the $hilippine government is liable for the clean#up of these resources, how can it be enforcedH 4et us assume that we had a government that is sympathetic and is willing to spend the necessary amount of money to direct the clean#up effort! ertainly, between an individual and a Government, the latter enjoys greater chances of success if it were to claim for reimbursement from the <0 government! %he avenues of political diplomacy available to governments

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are not available to individuals! What if the <0 Government refuses to reimburse the $hilippine governmentH Assuming the $hilippine government files a case in the -nternational ourt of Nustice, and assuming the <0 Government agrees to submit to its jurisdiction, what Environmental 4aw principle can the $hilippine government useH an the <0 government escape liability on the ground that it gave monetary aid to the $hilippines while it occupied those basesH %he abatement of a nuisance does not preclude the right of any person injured to recover damages for its past e+istence!"G ivil ode, Article ?') 4apse of time cannot legali.e any nuisance, whether public or private! G ivil ode, Article ?'( %he remedies available in the case of a nuisance are criminal prosecution for violation of local or national law, civil action for abatement of nuisance, and e+tra#judicial abatement! 0ince the issue of nuisance is usually a health issue, the government official made principally responsible for its abatement is the municipal, city or district health officer! -f the public nuisance is not necessarily a health issue but an issue of general welfare, it is the ,ayor who has the duty to initiate the action! What if the health officer or the ,ayor fails or refuses to ta3e actionH A citi.en can ta3e the government to court to compel him to perform the act required by law! A private person is also authori.ed to abate a nuisance by bringing a civil action himself or by conducting private abatement operations under certain conditions against the nuisance! Ca se an* effe"t

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-n the spectrum of human relations, there is, on the one side, the realm of contracts," where the parties agree on the relationship between them! At the other end of the spectrum is the realm of crimes, where the intentions of one are forcibly imposed upon another! -n between is the .one of unintended relations, a situation where there is no contractual relation between concerned parties, and the act that gives rise to an unintended relation does not constitute a crime! 2owever, under certain circumstances resulting in damage to another person, one may be said to have acted with fault or negligence! %his is the realm 3nown as quasi#delicts , li3e crimes!" Puasi#delicts cover all wrongful acts that neither constitute a breach of contract nor are punishable as crimes! %he concept is e+tensive enough to include any reasonable idea of liability for acts that result in damage and are li3ely to happen in a human society! Fault or negligence, in 4atin, is culpa! %he fault arising from an act or omission committed in the performance of a contract e+isting between the parties is 3nown as culpa contractual 8a fault in contractual obligations/! An act or omission resulting in damage in a situation where there is no pre# e+isting contract between the parties is called culpa a%uiliana! -n the case of a culpa a%uiliana, an employer may escape liability for the acts or omissions of his employee when the employer can prove that he e+ercised due diligence in the selection and supervision of his employee! -n the case of culpa contractual, this defense is not available! -n holding someone liable for damages arising from quasi#delict, there are three important things to remember@ &/ %here is damage or injury to the person claiming recoveryD >/ %he damage is imputable to the wrongdoer 8the prospective defendant in the civil action for damages/D and A/ %here is a direct relation of cause and effect between the act or omission and the resulting damage! %hese concepts are important when see3ing to attribute

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liability to industrial establishments accused of pollution! <nder the general principles of law, a case for damages can be filed only when the person bringing the case has the legal personality" or legal standing to sue!" %his means that the person bringing the case must be affected by the action complained of, directly or indirectly! %he second and third requirements of a quasi#delict may be summari.ed as the damage suffered by one must be the result of the act or omission of another!" -n other words, there must be established a definite connection of cause and effect between the act or omission of a person on the one hand and, on the other, the resulting damage to another person! -n the game of environmental litigation, this is where the role of science becomes indispensable! 0ay, for e+ample, that a group of fishermen see3s to hold a factory liable for the spill of to+ic waste into their fishing ground which resulted in a massive fish 3ill and deprived them of their livelihood! -t would be necessary for the fishermen to establish that the to+ic substances were present in the fish at levels that could, or did, cause their deathD that the to+ic substances were part of the industrial discharges of the manufacturing process of the factory being suedD and the to+ic substances were released as a result of the fault or negligence of the factory9s manager, supervisor or employee! %he essence of the legal basis is the causative connection!" %he plaintiffs in a pollution case must prove that there is a definite connection between the cause 8an act of a person or an establishment/ and the effect 8the resulting damage to others/! *n the part of the factory owner, the defense of due diligence is available! %he employerLowner may prove that he e+ercised due diligence in the selection of the company manager! 2e can further prove that he was also diligent in the proper e+ercise of supervision over the employees9 actions and day#to#day wor3!

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%here is a difference between the concept of liability arising from a quasi# delict based on fault or negligence as provided in the ivil ode and, the concept of strict liability as provided by some environmental laws! -n the latter, there is no need to prove fault or negligence! Where the damage is traceable to the act of the defendant, the plaintiff need not prove fault or negligence! Beither can the factory owner raise the defense of due diligence in the selection and supervision of their employees! Where the circumstances attending the damage or injury are of such a character that it justifies the presumption that there was negligence on the part of the defendant and that this was the cause of the injury, the situation is such that it spea3s for itselfG the doctrine of res ipsa lo%uitur! A bus bumped and injured a pedestrian! %he pedestrian was wal3ing on the sidewal3 on the opposite side of the road, the correct place where he had a right to be, while the offending bus was on the wrong side of the road! %here was no warning signal given by the bus that was running beyond the speed limit, its driver being under the influence of liquor! 2ere the circumstances indicating the presence of negligence are so obvious that they spea3 for themselves!" -n this situation, the burden of proof is shifted to the defendant@ 2e must now prove that he was not negligent! -n an Environmental law e+ample, where there is only one piggery upstream and the river is polluted with pig dung, the dung spea3s for itself! %here is only one source of the pollution! %he amount of evidence required under a civil action is less than that required in a criminal case! An aggrieved party that brings a civil action for damages arising from negligence cannot recover the same in a criminal action where damages are sought as an additional relief for the act of the accused committed with rec3less imprudence or gross negligence!

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-n cases where the victim committed negligent acts that were contributory in character, he could still recover damages, but the court will reduce the amount of the damages! $arents, guardians, owners of establishments, teachers and employers are generally responsible for the acts of the persons under their care! Available to them as a defense is that they e+ercised the diligence of a good father of a family 8bonos paterfamilias/ to prevent the damage! When a horse escapes from its corral and eats the growing corn of a neighbor9s farm, the owner of the horse is liable for the damage done! -t is the responsibility of the person who maintains the animal to 3eep it safe and secure! *f course, when the escape of the animal is occasioned by force ma&eure such as when an earthqua3e stri3es and destroys the fence of the corral, the owner is not liable! 4iability for the spillage of to+ic wastes when being transported in a motor vehicle may be grounded in Articles >&(C, >&(1 or >&(? of the ivil ode, depending on whether or not the owner was in the vehicle at the time of the mishap! $roprietors are responsible for the damage caused by their establishments, as a result of, for e+ample, e+cessive and harmful smo3e 8a!3!a! pollution/, e+plosions, and to+ic and ha.ardous waste releases or emissions! %he manufacturer or processor is liable for any ha.ardous substance he places into the product sold to the public for consumption and ingestion! %hus, where the liquid content of a bottle of soft drin3 contains chips of bro3en glass that are ingested by the consumer, the soft drin3 manufacturer is liable for the injury caused!&6? A test case involving cigarette manufacturers was filed in a $hilippine trial court! %he legal case was to close down a cigarette factory, claiming that the factory was a nuisance! an the cigarette manufacturer9s liability be absolved on the defense that it posted a warning notice on the cigarette pac3s that smo3ing is ha.ardous to one9s healthH ould the manufacturer claim

47

that it was the responsibility of the buyer to be aware of the health ha.ards of the product 8caveat emptor/ and having ingested it 3nowingly, the buyer bears the ris3H Pa,in$ /*a#a$es& for /in0 rin$& nat re 7amages are defined as the monetary compensation for the satisfaction of an injury sustained! %hese represent the economic consequences that the law imposes for the breach of some duty or violation of some right! %he word damages" is technically different from the word injury!" -njury refers to a wrongful act that causes loss or harm to anotherD while damages" refers to the sum of money that may be recovered as amends for the wrongful act! -n essence, injury" is the act, while damages" is the result of the act! 2ow is this relevant to the field of Environmental 4awH -t can be said that injury" is what we have inflicted on the natural environmentD damages" is what we will have to pay in the ne+t two to three centuries in order to restore, if still possible, the injured natural systems! -n many cases of environmental injury, however, the resulting harm is irreversible and virtually irreparable! An e+tinct species is gone forever! When the surface of the earth is paved over with concrete, its porosity disappears and is gone forever! After we remove the mineral deposits and use them to build cars, appliances, and other metallic things, there is no way we can restore into the earth the base metal earlier e+tracted! -n some cases, the ecological system may still be restored! 2owever, in its natural pace, it would ta3e a very long time! 0urface water pollution is relatively the easiest to remedy! %he total stoppage of the source of pollution will, in a relatively short time, begin to restore the quality of water to one capable of sustaining life! When a forest, especially a tropical rain forest, is denuded and converted to agricultural use, almost all of its biological diversity disappears! -f, however,

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only some of the trees are cut and the saplings and underbrush are left behind, in time it will grow bac3 to a closed canopy state! oral reefs are another story altogether! -f left undisturbed, damaged coral reefs will ta3e anywhere between >6 and 16 years, in some cases &66 years! *n the other hand, for the marine life to be restored, closing off an area and transforming it into a fish or marine sanctuary even for a year or two almost immediately restores the abundance of its aquatic resources! -n turn, this accelerates the growth of corals! %here are four classifications of damages! Actual damages refer to the cost necessary to replace the loss resulting from the injury inflicted and damage caused, estimated in monetary value! For e+ample, chargeable as actual e+penses in a physical injury case are the medical and hospitali.ation costs, doctors9 fees, and incidental e+penses such as transportation, subsistence, accommodation and communications! -n other words, all the natural and probable consequences of the wrongful injury, including benefits that could have been earned, are the proper standards of measure for the damages due! %he words those which could have been earned" also refer to the opportunity loss!" %hus, what a person could have earned over the remaining years of his lifeGthe foregone income and the benefit it could have given to the members of his familyGare proper items to recover as opportunity losses arising from the person9s untimely death! %his is useful to 3now in the case of severe air pollution, where a great number of people suffer from respiratory ailments, or in cases of water pollution where people suffer digestive disorders! -n cases where numerous people are affected, the costs are multiplied! -n the pre#litigation preparation for the cost estimates of actual damages, it is always good to ensure that all the e+penses are accounted for! *ne way to do this is to 3eep a noteboo3 and just paste all the e+pense vouchers and

49

receipts in its pages! %he figures are easier to add up! %o replace ecosystems damaged by acts of pollution or e+traction, the emerging science of environmental accounting" comes in very handy in helping determine the rehabilitation andLor replacement" cost! E+emplary damages are also called corrective or punitive damages! %his form of penalty is meant to provide an e+ample to the public that the behavior committed, which resulted in injury and damage to a person, is to be discouraged! -t is corrective or punitive in the sense that it is meant to punish and correct the behavior of the person who committed the wrong! %o be able to secure corrective or e+emplary damages, it is necessary to prove that the guilty party acted with such malice, bad faith, rec3lessness, or oppression, that it must be punished and corrected! -t must also be made an e+ample so that others similarly inclined may not follow the same pattern of behavior! ,oral damages refer to compensation for the human feelings of physical suffering, emotional and mental pain, an+iety, moral outrage, shoc3, humiliation, wounded feelings, and besmirched reputation e+perienced by persons aggrieved by an injury! 5y their very nature, they are not capable of monetary estimation! 2owever, since there is no other way by which a person can be compensated and made somewhat whole again," the indemnification is estimated in monetary terms! ,oral damages are not intended as a form of penalty against the wrongdoer, nor is it meant to enrich the victim! =ather, it is meant to enable the injured person to obtain the means, diversion, or amusement that may serve to alleviate or lessen the physical and psychological suffering e+perienced as a result of the injury! Bote that even sentimental value may be ta3en into account in the computation of moral damages in the loss of a thing! Attorney9s fees and litigation costs refer to the financial burden of having to bring a case before a ourt of Nustice to redress a wrong! %he general rule

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appears to be that these are not recoverable! -n certain instances, however, reasonable attorney9s fees and litigation costs may be recovered, such as when e+emplary damages are awardedD in criminal cases, for malicious prosecutionD in cases of clearly unfounded civil actionsD when there is gross and evident bad faith in refusing to satisfy a valid claim, and in cases for legal support! %hese may also be recovered in civil actions arising from crimes, for recovery of wages and wor3men9s compensation, where the acts of the wrongdoer 8defendant/ forced the victim 8plaintiff/ to sue in courtD and where the court deems it proper! %his enumeration is an interesting e+ample of a law that provides so many e+ceptions, and is worded in such encompassing language, that the e+ceptions almost become the general rule! -n a pollution case where the polluter acts with deliberate malice in defying an official order to stop the pollution, attorney9s fees and litigation costs may be recovered! E+amples of malicious conduct would be when an establishment dumps its wastewater at night, or when it constructs a by#pass pipe around the treatment facility! A strate$, for *efense A word of caution to environmental advocates and enforcers@ ,oral damages are recoverable in cases of libel and defamation! %his is especially important for environmental advocates who find themselves at the receiving end of counter#charges, usually baseless, but which are intended to have a chilling effect on the wor3 of the advocate! %he entity that initiates the counter#charges usually see3s millions of pesos worth of damages, enough to douse the enthusiasm of an advocate and force him to bac3 down! Environmental enforcement operatives are vulnerable to claims for moral damages on accusations of illegal arrest, arbitrary detention, illegal search and sei.ures, and other charges! Enforcement operatives must thus e+ercise proper care in the preparation of legal documents, arms, equipment, and

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personnel complement, time and motion estimates, as well as ingress and egress procedures! Another important aspect often forgotten by operatives is what to do after the arrest is made! -t is important to prepare a chec3list of the necessary documents needed to file a case sufficient to conduct a preliminary investigation! *ne can even facilitate this further by preparing sample affidavitLsworn statements to reduce the tas3 of preparing one into a fill#in#the#blan3 e+ercise! Enforcers need not be discouraged when a harassment suit is filed! 0uch charges as illegal or arbitrary arrest and detention, illegal search, violation of human rights, and suing for multi#million peso damage suits are commonplace cases filed against enforcement operatives! =emember that the best defense is offense! Also, if the operatives have carefully planned and e+ecuted the operation, defending against harassment suits becomes much easier, especially if there are sufficient documentary or photographic pieces of evidence! A determined advocate may ta3e note of a few lessons in the game of advocacy@ 5e careful with public utterances1%here must be at least some amount of proof to bac3 up claims made! Also, the allegations must be made in good faith and in response to a moral, legal, or social duty of a concerned citi.en who is after the welfare of the natural environment! %urn the tablesG%he road between the allegation and proof is also 3nown as the long and winding road of due process! ,any things can happen along the way, not the least of which is being able to turn the tables on the harassing plaintiff! ounter#attac3GWhen a client is hit with a harassment suit, an effective environmental advocate must move away from the defensive mode and shift to offensive and aggressive gear! %o do this, the advocate must open as

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many fronts as possible, and then challenge the accuser on all fronts! %his can 3eep the accuser off#balance, after which he is li3ely to trip and fall! %he provisions on human relations in the ivil ode were formulated as basic principles for bringing about the rightful relationships between individuals for the stability of the social order! %he provisions are broad, as they must be, for they are meant to be catch#all principles for human behavior! %hey must be broad enough because they must encompass a wide variety of relationships, with good faith as the only touchstone and conscience as the only guiding light! Every person must, in the e+ercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith!"G ivil ode, Article &' A right carries with it a corresponding responsibility! While everyone is possessed with a right, its e+ercise must be accompanied with good faith, good manners, and right conduct! -n other words, the conduct must not be contrary to good behavior 'contra bonos mores/! For e+ample, while a person has a right to fence off his property, he cannot put up a fence so high as to obstruct the view of his neighbor of a nearby sea! Bor can he put up a high wall on his lot depriving his neighbor of sunlight! -ndeed, the strength of a right" fades in the face of the wrongful manner by which it is e+ercised! -t vanishes altogether when it is abused! Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same!"G ivil ode, Article >6 %his covers acts that are contrary to law, or illegal acts!" %his liability for damages attaches to every criminal act! -t also covers acts resulting in damage caused by negligence! Any person who willfully causes loss or injury to another in any manner

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that is contrary to morals, good customs, or public policy shall compensate the latter for the damage!"G ivil ode, Article >& %his provision covers acts that, although not strictly illegal or contrary to law, are contrary to morals, good customs, and public policy! 5ut would not this article blur the boundary between morality and lawH %he answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles that are written with words of fire in the conscience of man! %hus, Article >& covers an entire spectrum of wrongful conduct that would otherwise escape the talons of the law! ,r! Andres digs a well and installs a powerful pump on his property! %he pump suc3s up most of the water in the water table and deprives the neighboring areas of water! %he situation is even more aggravated where the water being ta3en is just being thrown away and wasted by ,r! Andres! Although law does not specifically prohibit the act, under the principle of law articulated above, it is nevertheless obviously morally wrongful! -n a true#to#life legal case, the court awarded moral damages to the complainants whose right to the water was violated! -n this case, a person pumped out water and dried up the well of the complainants depriving them of irrigation water for their farmlands! -t was discovered that this was purposely and maliciously done in order to ma3e the complainants run out of water and ma3e them vacate their landholdings! Every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the e+pense of the latter without just or legal ground, shall return the same to him!" G ivil ode, Article >> %his is also 3nown as the principle of unjust enrichment, the act of unduly benefiting, or of being unjustly enriched, at the e+pense of another! An interesting e+ample happened in the early &'(6s! A legal case erupted in the

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headlines when a couple was supposed to receive the amount of only Q&,666! %hrough a mista3e of the <0 ban39s functionary, a few more .eros were added, such that the Q&,666 became the princely sum of Q & million! Even when an act or event causing damage to another9s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited!"G ivil ode, Art >A %he couple refused to return the money and was sued by the <0 ban3 for recovery of the sum of money, fraud, and the li3e! *ne of the causes of action for damages was precisely for unjust enrichment! -n Environmental 4aw, consider the possibility of using this principle against a logging, mining, or industrial enterprise that wantonly violates environmental laws and regulations! %o the e+tent that it did not spend for the environmental measures, thus saving on operating costs, it is enriched, unjustly and at the e+pense of others! %he others" are those who have become victims of a landslide due to denuded forests, the fisherfol3 whose catch was reduced by the pollution, the neighboring community that had to breathe the foul air, or even society at large, whose resources were depleted as a consequence of environmentally#unsound business practices! -n all contractual, property, or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental wea3ness, tender age, or other handicap, the courts must be vigilant for his protection!"G ivil ode, Article >C %his provision e+presses in legal language what a popular $hilippine president in the &'16s supposedly said in more simple terms@ %hose who have less in life must have more in law! -n an ideal world, the powerless must be given the necessary support to stand on equal ground with the powerful, in order that the scales of justice be made to balance, and the relationship between men be made fair and just!

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%houghtless e+travagance in e+penses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution!"G ivil ode, Art! >1 -n case of severe drought, for e+ample, a rich man filling up his swimming pool or carelessly watering the fairways of his golf course with fresh water would be an appropriate e+ample of thoughtless e+travagance 8in times/ of acute public want!" When the rich indulge in thoughtless e+travagance or display during a period of acute public want or emergency, they may un3nowingly 3indle the flame of unrest in the hearts of the poor! %he poor who, loo3ing at their wretched condition become too 3eenly aware of their poverty, and who, with anger in their hearts, may dare to rise against the obvious inequality! 0uch display of pomp and frivolity tends to demorali.e the suffering masses and wea3en the very fabric of the social group!" Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be ta3en!"G ivil ode, Article >) -n addition to the administrative and criminal actions one may have against public officials under the strict ode of onduct of $ublic *fficials and the Anti#Graft and orrupt $ractices 4aw, the above#quoted provision of the ivil ode is also available as a civil action!" -t may be lin3ed to another provision in the ivil ode, which states that a public officer who violates the basic rights of a citi.en can be held liable for civil damages! A ri$ht to li#ite* se

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-n law, an easement is a right given to a person, or to the public, to ma3e limited use of a piece of land! *n the side of the owner of the land, it represents an imposition and a limitation on his use of private property! %hus, there is such a thing as an easement of a right of way! %his relates to the use of private property to allow another person to use a roadway as an e+it to the highway or a major thoroughfare! Easement of right of way is the most common type! %his type of easement gives certain people the right to cross another9s property in order to obtain access to a public highway or main thoroughfare! Bote, however, that while there is a right of way to a public highway, there is no right of way to the sea or to a body of water such as a la3e or river! %he easement that runs along the ban3s of rivers and along the seashore is 3nown as easements relating to water! %his type of easement limits use of the land along the shore! %hus, even if a parcel of land that adjoins the riverban3 or seashore is private property, its owner cannot use for his own purposes that parcel of land along the riverban3 or seashore! %here is an easement in this margin of land along water bodies that is created by law for the benefit of the public! %his is 3nown as the easement .one for recreation and navigation! %he Water ode of the $hilippines provides that the margin of land along riverban3s and seashores that must be reserved as the easement .one for recreation and navigation, must be three meters in urban areas, >6 meters in agricultural areas, and C6 meters in forest areas! 4ight and view are so important to a good quality of life that even the law provides that there be a space provided between buildings! %his is 3nown as the easement of light and view! %his right may be e+ercised by putting openings in one9s walls! An easement of view includes the right to bar the owner of a neighboring property from bloc3ing one9s view!

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%he importance of natural sunlight cannot be over#emphasi.ed! -t is notable that in 0candinavian countries, for e+ample, where there is very little sunlight during winter, cases of depression are reportedly high! *n the other hand, people in the tropics where sunlight is abundant are generally cheerful and smiling!. %he easement of falling waters and drainage refers to waters falling onto one9s lot or house! -f there is no outlet for e+cess waters falling into the street, sewer, or other waterways, the e+cess waters will unduly accumulate in a stagnant pool and breed mosquitoes and other carriers of diseases! %his is the reason behind the legal requirement to provide drainage in buildings! As in any easement, the way of the water9s egress must be via a route where the water will flow in the easiest manner and with the least damage to the servient" estate! %he law states that no tree can be planted closer than two meters 8>66 centimeters/ from the property line of the adjacent property! For shrubs and small trees, the distance is 16 centimeters from the property line! -n case it is planted closer than these distances, the adjacent property owner may demand that the tree or shrub be uprooted or cut! %his also applies to spontaneously growing trees! %he reason behind the law is that if the plant or tree is too close, its e+tensive root system may penetrate the adjoining lot and damage structures that are erected there! 0imilarly, the intrusion of branches into the adjoining airspace is also a violation of the right of the adjoining owner to his property! -f the roots of a tree creep into and invade" adjoining land, its owner may immediately cut them! -f only the branches e+tend to the adjacent lot, he may demand that these overhanging branches be cut! -f the tree owner fails to do so, the complaining party may cut the tree himself! Fruits naturally falling on the lot of another as a result of over#hanging branches belong to that adjoining lot owner! %his may be some form of

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compensation" to the adjoining lot owner for allowing the branches of the tree to invade the airspace of his property! Bote, however, the operative word is naturally falling," thereby precluding the adjoining lot owner from helping himself to the fruits from the overhanging branches! Every building or piece of land is subject to easement against nuisance for the public welfare! Following the general principle that one may not use one9s property in a manner that will injure others, a legal easement 8or limitation/ is placed on every piece of property! %his, in effect, states that the property shall not be used to commit nuisance through the emission of noise, jarring sounds, offensive odor, smo3e, heat, dust, water, glare, and similar nuisances! .

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