Beruflich Dokumente
Kultur Dokumente
state a cause of action, and that the issue was political in complexion. After about one year, the
Regional Trial Court dismissed the case on the following grounds:
1. Failure to state a cause of action on the part of the plaintiffs and lack of
personality to sue.
2. The issue is a political question and therefore, non-justiciable.
was sought to be achieved by protracted legal action was accomplished, at least partially, by
administrative action. This is not to say that the legal action was principally or even significantly
responsible for this development. If at all contributory, it served to merely stoke the fire of concern
over our vanishing forest resources.
9 LESSONS LEARNED
For all its jurisprudential value and implications in constitutional and political law, remedial
law and environmental law, the important lesson learned is that environmental controversies and
issues are not resolved by legal action and in the legal forum. After a 3-year battle all the way to
the Supreme Court, only the legalistic issue of the legal personality to sue had been resolved. If
a proactive environmental legal action can be of any value at all, it is in the fact that it serves to:
1. Force the issue and disturb the molecules of thought not only in the minds of
the concerned sectors (Government, logging operators, legislators, etc.), but
also the minds of the general public.
2. Oftentimes an environmental issue becomes a highly-charged emotional
controversy. Submitting it before a court of law will render it sub judice and
subject the controversy to the court.s dispassionate scrutiny. The issues can
be clarified in an orderly manner.
3. Given a sympathetic bureaucracy, the government administrators may just be
looking for additional ammunition with which they can enact a policy that they
wanted to do in the first place but could not on account of political considerations
and sensitivities.
FOURTH 6 INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
10 CONCLUSION
So far we have discussed a legal precedent on the issue of inter-generational
responsibility. What are the possible theoretical extensions of the principle?
1. If a generation is fully aware of its destructive behavior in such environmental
concerns as climate change, deforestation, and marine resource depletion,
yet continues to follow such conduct, is there malice and bad faith?7
If so, is the next generation entitled to inter-generational moral damages?
2. If a generation converts and misappropriates for its own use and benefit the
natural resource treasures which it holds in trust for succeeding generations
. the beneficiaries . can the former be held for, and is there a crime of,
generational swindling? The answers to these we shall leave to future
jurisprudence.
REFERENCES
1. Stockholm Declaration, Principle No. 1, and the Rio Declaration, Principle 3.
2. The agency of Government primarily mandated to protect the country.s natural resources
in the Department of Environment and Natural Resources (DENR).
3. To the credit of then DENR Secretary, F.S. Factoran, his administration was of similar
thinking. In fact, he was informed beforehand of the legal action which he gamely
encouraged and supported.
4. Minors vs. Secretary of the DENR, GR 101083, 224 SCRA 792. All quotations
hereinafter cited may be found in the decision.
5. The plantiffs-children were carefully selected to come from all the geographic regions of
the country.
6. DENR Dept. Admin. Order No. 24, Series of 1991.
7. It is a universal principle of law that when one knows that something is wrong yet goes
ahead and does it, there is premediated malice and evident bad faith.
FOURTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT 7
Guideline
Page 1 of 13 140701 EM1033 ABN 46 640 294 485
Table of contents
What is an environmental protection order?
....................................................................... 2
Is this the appropriate statutory tool? .................................................................................
2
Issuing an EPO ......................................................................................................................
2
When the department issues an EPO ..................................................................................
2
Consider the standard criteria ..............................................................................................
3
How does the department successfully issue an EPO?
..................................................... 4
Step 1Completion of the assessment report
............................................................................. 5
1. Grounds for issuing an EPO
..................................................................................................................... 5
2. Expand upon the grounds
......................................................................................................................... 5
3. Brief history of the matter
......................................................................................................................... 5
4. Detail the matters considered
................................................................................................................... 5
5. Proposed requirements
............................................................................................................................. 6
6. Provide for natural justice
......................................................................................................................... 7
7. Recommendation
....................................................................................................................................... 8
8. Approval
...................................................................................................................................................... 8
Issuing an EPO
A decision to issue an EPO must be made by a person with the delegated authority to do so. Decisions
made by individuals who do not have the delegated authority to make the decision may be invalid.
out, or that is likely to be carried out, or is proposed to be carried out by the person, is causing, or is likely
to cause, unlawful environmental harm;
the general environmental duty;
an environmental protection policy (EPP);
Guideline Environmental
Protection Order
Guideline Environmental
Protection Order
and maintaining ecological processes. Would the EPO be consistent with environmental protection
policies on water, air, noise or waste for example? Consider other documents such as state or regional
coastal plans.
value includes a quality or physical characteristic of the environment that is conducive to ecological health
or public amenity or safety. Does the EPO have sufficient regard to the receiving environment?
community involvement on the issues that affect them? Have any submissions by the applicant and
anyone else who makes a properly made submission about the EPO been considered?
instrument, as follows:
an environmental authority;
a transitional environmental program;
an environmental protection order;
a disposal permit;
a development approval.
In managing the activity (to achieve an ongoing minimisation of the activitys environmental harm), are the
measures cost effective when compared to measures used nationally and internationally for the activity?
Officers should consider section 21 of the Act.
proposed instrument, mentioned
above as they would relate to the type of activity or industry carried out, or proposed to be carried out,
under the instrument. Consider the cost effectiveness and flexibility of the requirement.
it in the interests of the community that the EPO be approved?
(approved under Chapter 7, Part 8 of the Act), is the EPO consistent with the plan. If not, is the
inconsistency necessary for addressing the matters under the EPO? How will any inconsistency be
reconciled? Consult with the Contaminated Land Unit as early as possible when there are any
contaminated land issues.
environmentally relevant activity or activities means a system for the management of the environmental
impacts of the carrying out of the activity or activities.
Guideline Environmental
Protection Order
Protection Order
Page 6 of 13 140701 EM1033 Department of Environment and Heritage Protection
ation sourced.
When documenting the evidence considered, officers are encouraged to limit the information to relevant
points only. This can include:
lab reports;
When developing the facts and circumstances, officers are encouraged to consider the accuracy and
relevance of available evidence, historical details, professional expertise and the weight attributed to any
direct testimony provided.
5. Proposed requirements
In instances where it is recommended that requirements are imposed upon the affected person, the
officer is responsible for developing proposed requirements for consideration by the delegate. The Act
provides that the department may impose a reasonable requirement relevant to the reason why the EPO
is issued (section 358). Without limiting those requirements, section 360(2) provides that the EPO may:
notice from the department;
r subject to stated
conditions; or
When drafting the requirements, officers should consider how they will contribute to preventing or
minimising environmental harm and whether the requirements are reasonable. As the recipient of the
EPO is able to seek a review of a decision to impose one or more requirements, it is necessary for
officers to provide justification for the inclusion of each requirement.
In accordance with the departments Regulatory Strategy, requirements should be outcome-focussed,
except in certain defined circumstances where it is necessary to prescribe how the requirement should be
carried out. Requirements must be SMART: specific, measureable, achievable, relevant and time specific.
Requirements must be relevant to the reason why the EPO is issued.
Example
An outcome-focussed requirement:
Immediately upon receipt of this EPO, contaminated water must not be released from the site.
If it is necessary to prescribe how this requirement should be carried out: Guideline
Protection Order
Page 7 of 13 140701 EM1033 Department of Environment and Heritage Protection
Environmental
7. Recommendation
The investigating officer is required to make a recommendation in relation to the alleged breach.
Example
It is the opinion of the department that ABC Pty Ltd failed to comply with its EA conditions by allowing
storm water to leave 24 Jones Road and enter Murphy Creek. It is recommended that an EPO be
issued.