Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 194239 June 16, 2015
WEST TOWER CONDOMINIUM CORPORATION, on behalf of the Residents of West Tower
Condominium and in representation of Barangay Bangkal, and others, including minors and
generations yet unborn,Petitioners,
vs.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION and their
RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN DOES, and RICHARD
DOES, Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is the Petition for the Issuance of a Writ of Kalikasan filed following the leak in the
oil pipeline owned by First Philippine Industrial Corporation (FPIC) in Makati City. The Facts
Respondent FPI C operates two pipelines since 1969, viz: ( 1) the White Oil Pipeline (WOPL)
System, which covers a 117-kilometer stretch from Batangas to the Pandacan Terminal in Manila
and transports diesel, gasoline, jet fuel and kerosene; and (b) the Black Oil Pipeline (BOPL) System
which extends 105 kilometers and transports bunker fuel from Batangas to a depot in Sucat,
Paraaque. These systems transport nearly 60% of the petroleum requirements of Metro Manila and
parts of the provinces of Bulacan, Laguna, and Rizal.
The two pipelines were supposedly designed to provide more than double the standard safety
allowance against leakage, considering that they are made out of heavy duty steel that can
withstand more than twice the current operating pressure and are buried at a minimum depth of 1.5
meters, which is deeper than the US Department of Transportation standard of 0.9 meters. In May
2010, however, a leakage from one of the pipelines was suspected after the residents of West
Tower Condominium (West Tower) started to smell gas within the condominium. A search made on
July 10, 2010 within the condominium premises led to the discovery of a fuel leak from the wall of its
Basement 2. Owing to its inability to control the flow, West Tower's management reported the matter
to the Police Department of Makati City, which in turn called the city's Bureau of Fire Protection.
What started as a two-drum leak at the initial stages became a 15-20 drum a day affair. Eventually,
the sump pit of the condominium was ordered shut down by the City of Makati to prevent the
discharge of contaminated water into the drainage system of Barangay Bangkal. Eventually, the
fumes compelled the residents of West Tower to abandon their respective units on July 23, 2010
and the condo's power was shut down.
Petitioner FPIC initially disowned any leak from its oil pipeline. Thus, the residents of West Tower
shouldered the expenses of hauling the waste water from its basement, which eventually required
the setting up of a treatment plant in the area to separate fuel from the waste water. On October 28,
2010, the University of the Philippines-National Institute of Geological Sciences (UP-NIGS), which
the City of Makati invited to determine the source of the fuel, found a leak in FPIC's WOPL about 86
meters from West Tower.
A day after, or on October 29, 2010, FPIC admitted that indeed the source of the fuel leak is the
WOPL, which was already closed since October 24, 2010, but denied liability by placing blame on
the construction activities on the roads surrounding West Tower.
On November 15, 2010, West Tower Condominium Corporation (West Tower Corp.) interposed the
present Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and
in representation of the surrounding communities in Barangay Bangkal, Makati City. West Tower
Corp. also alleged that it is joined by the civil society and several people's organizations, non-
governmental organizations and public interest groups who have expressed their intent to join the
suit because of the magnitude of the environmental issues involved.1
In their petition, petitioners prayed that respondents FPIC and its board of directors and officers, and
First Gen Corporation (FGC) and its board of directors and officers be directed to: (1) permanently
cease and desist from committing acts of negligence in the performance of their functions as a
common carrier; (2) continue to check the structural integrity of the whole 117-kilometer pipeline and
to replace the same; (3) make periodic reports on their findings with regard to the 117-kilometer
pipeline and their replacement of the same; (4) rehabilitate and restore the environment, especially
Barangay Bangkal and West Tower, at least to what it was before the signs of the leak became
manifest; and (5) to open a special trust fund to answer for similar and future contingencies in the
future. Furthermore, petitioners pray that respondents be prohibited from opening the pipeline and
allowing the use thereof until the same has been thoroughly checked and replaced, and be
temporarily restrained from operating the pipeline until the final resolution of the case.
To bolster their petition, petitioners argued that FPIC's omission or failure to timely replace. its
pipelines and to observe extraordinary diligence caused the petroleum spill in the City of Makati.
Thus, for petitioners, the continued use of the now 4 7-year old pipeline would not only be a hazard
or a threat to the lives, health, and property of those who live or sojourn in all the municipalities in
which the pipeline is laid, but would also affect the rights of the generations yet unborn to live in a
balanced and "healthful ecology," guaranteed under Section 16, Article II of the 1987 Constitution.
On November 19, 2010, the Court issued the Writ of Kalikasan2 with a Temporary Environmental
Protection Order (TEPO) requiring respondents FPIC, FGC, and the members of their Boards of
Directors to file their respective verified returns. The TEPO enjoined FPIC and FGC to: (a) cease
and desist from operating the WOPL until further orders; (b) check the structural integrity of the
whole span of the 11 7-kilometer WOPL while implementing sufficient measures to prevent and avert
any untoward incident that may result from any leak of the pipeline; and ( c) make a report thereon
within 60 days from receipt thereof.
In compliance with the writ, FPIC directors Edgar Chua, Dennis Javier, Dennis Gamab and Willie
Sarmiento submitted a Joint Return3 praying for the dismissal of the petition and the denial of the
privilege of the Writ of Kalikasan. They alleged that: petitioners had no legal capacity to institute the
petition; there is no allegation that the environmental damage affected the inhabitants of two (2) or
more cities or provinces; and the continued operation of the pipeline should be allowed in the
interest of maintaining adequate petroleum supply to the public.
Respondents FPIC and its directors and officers, other than the aforementioned four ( 4) directors,
also filed a Verified Return4 claiming that not all requirements for the issuance of the Writ of
Kalikasan are present and there is no showing that West Tower Corp. was authorized by all those it
claimed to represent. They further averred that the petition contains no allegation that respondents
FPIC directors and officers acted in such a manner as to allow the piercing of the corporate veil.
Meanwhile, on January 18, 201-1, FGC and the members of its Board of Directors and Officers filed
a Joint Compliance5 submitting the report required by the Writ of Kalikasan/TEPO. They contended
that they neither own nor operate the pipelines, adding that it is impossible for them to report on the
structural integrity of the pipelines, much less to cease and desist from operating them as they have
no capability, power, control or responsibility over the pipelines. They, thus, prayed that the
directives of the Writ of Kalikasan/TEPO be considered as sufficiently performed, as to them.
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page "Report on Pipeline
Integrity Check and Preventive Maintenance Program."6 In gist, FPIC reported the following: (I) For
the structural integrity of the 117-kilometer pipeline, (a) the DOE engaged the services of UP-NIGS
to do borehole testing on 81 pre-identified critical areas of the WQPL in eight cities and
municipalities-all the boreholes showed negative presence of petroleum vapors; (b) pressure tests
were conducted after the repair of the leak and results showed negative leaks and the DOE's
pipeline expert, Societe General de Surveillance, New Zealand, has developed a pressure test
protocol requiring a 24-hour operation of running a scraper pig through the pipeline to eliminate air
gap; (c) In-Line Inspection Test, was conducted by NDT through MFL and ultrasonic. The NDT later
cleared the WOPL from any damage or corrosion.
(II) For preventive maintenance measures, (a) Cathodic Protection Systems are installed involving
the use of anode materials and the introduction of electric current in the pipeline to enhance
prevention of corrosion; (b) Regular Scraper Runs through the pipeline to maintain cleanliness and
integrity of the pipelines' internal surface; (c) Daily Patrols every two hours of the pipeline route to
deter unauthorized diggings in the vicinity of the pipeline segments; ( d) Regular coordination
meetings with DPWH, MMDA and utility companies to monitor projects that might involve digging or
excavation in the vicinity of the pipeline segments; (e) Installation of Security Warning Signs along
the pipeline route with toll free number which can be called in the event of an accident or
emergency; (f) Emergency Response Procedure of the ERT is activated by a call-out procedure; (g)
Maintenance of Emergency Equipment and Repair Kit which are always on standby; and, (h)
Remotely controlled Isolation Valves are in place to shut the pipeline when necessary.
On February 9, 2011, petitioners filed, and the Court eventually granted, their Motion to Set the Case
for Preliminary Conference and Hearing7 pursuant to Sec. 11, Rule 7 of the Rules of Procedure for
Environmental Cases.
On April 15, 2011, the Court conducted an ocular inspection of the WOPL in the vicinity of West
Tower to determine the veracity of the claim that there were two (2) additional leaks on FPIC's
pipeline. Results of the ocular inspection belied the claim.
In the meantime, petitioners also filed civil and criminal complaints against respondents arising from
the same incident or leakage from the WOPL.8
Since after the Court's issuance of the Writ of Kalikasan and the TEPO on November 19, 2010, FPIC
has ceased operations on both the WOPL and the BOPL. On May 31, 2011, however, the Court,
answering a query of the DOE, clarified and confirmed that what is covered by the Writ of Kalikasan
and TEPO is only the WOPL System of FPIC; thus, FPIC can resume operation of its BOPL
System.9
On July 7, 2011, petitioners filed an Omnibus Motion10 assailing the Court's May 31, 2011
Resolution, praying for the conduct of oral argument on the issue of reopening the BOPL System.
This was followed, on September 9, 2011, by a Manifestation (Re: Current Developments) with
Omnibus Motion11 wherein petitioners invoked the precautionary principle12 and asserted that the
possibility of a leak in the BOPL System leading to catastrophic environmental damage is enough
reason to order the closure of its operation. They likewise alleged that the entities contracted by
FPIC to clean and remediate the environment are illegally discharging waste water, which had not
undergone proper treatment, into the Paraaque River. Petitioners, thus, prayed that respondents be
directed to comply with environmental laws in rehabilitating the surroundings affected by the oil leak
and to submit a copy of their work plan and monthly reports on the progress thereof. To these
omnibus motions, respondents were directed to file their respective comments.
On September 28, 2011, respondent FPIC filed an Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project)13 in order to reduce stress on the WOPL System. FPIC sought to construct a
new realigned segment to replace the old pipe segment under the Magallanes Interchange, which
covers the portion that leaked. Petitioners were directed to file their comment on FPIC's motion.
Report and Recommendation of the Court of Appeals
To expedite the resolution of the controversy, the Court remanded the case to the Court of Appeals
(CA). By this Court's Resolution dated November 22, 2011,14 the appellate court was required to
conduct hearings and, thereafter, submit a report and recommendation within 30 days after the
receipt of the parties' memoranda.
On March 21, 2012, the preliminary conference was continued before the CA wherein the parties
made admissions and stipulations of facts and defined the issues for resolution. In view of the
technical nature of the case, the CA also appointed15 several amici curiae,16 but only four (4) filed
their reports.17
On December 26, 2012, the CA Former 11th Division submitted to the Court its well-crafted and
exhaustive 156-page Report and Recommendation18 dated December 21, 2012 (CA Report). Some
highlights of the Report:
1. Anent petitioners' June 28, 2011 Omnibus Motion assailing the reopening of the BOPL
System, the CA directed respondent FPIC to submit the appropriate certification from the
DOE as to the safe commercial operation of the BOPL; otherwise, the operation of the BOPL
must also be enjoined.
 2. On petitioners' September 9, 2011 Manifestation (Re: Current Developments) with
Omnibus Motion, the CA directed the Inter-Agency Committee on Health to submit its
evaluation of the remediation plan prepared by CH2M Hill Philippines, Inc. for FPIC. Further,
the appellate court directed FPIC to strictly comply with the stipulations contained in the
permits issued by the Department of Environment and Natural Resources (DENR) for its
remediation activities in Barangay Bangkal, Makati City. The DENR was in turn directed by
the CA to:
(a) monitor compliance by respondent FPIC with applicable environmental laws and
regulations and conditions set forth in the permits issued;
(b) conduct independent analysis of end-products of the Multi-Phase Extraction
System;
(c) conduct regular consultative meetings with the City of Makati, residents of
Barangay Bangkal and other stakeholders concerning the remediation activities; and,
(d) evaluate the viability of the recommendation of amicus Dr. Benjamin R. De Jesus,
Jr. to include the use of surfactants and oxygen-releasing compounds (ORCs) in the
middle and terminal portions of the remediation plan.
3. Respondent's September 27, 2011 Urgent Motion for Leave (To Undertake "Bangkal
Realignment" Project) was denied.
4. With regard to the March 29, 2012 Supplemental Manifestation (Re: List of Amici Curiae
and Recent Possible Leak in the Pipeline) filed by petitioners, the CA found that the
existence of another possible leak alleged by petitioners was not established. Nonetheless,
to prevent such event, the CA ordered FPIC to: (i) review, adopt and strictly observe
appropriate safety and precautionary measures; (ii) closely monitor the conduct of its
maintenance and repair works; and (iii) submit to the DOE regular monthly reports on the
structural integrity and safe commercial operation of the pipeline.
5. As to the merits of the case, the CA submitted the following recommendations:
(a) That the people's organizations, non-governmental organizations, and public
interest groups that indicated their intention to join the petition and submitted proof of
juridical personality (namely: the Catholic Bishop's Conference of the Philippines;
Kilusang Makabansang Ekonomiya, Inc.; Women's Business Council of the
Philippines, Inc.; Junior Chambers International Philippines, Inc. - San Juan Chapter;
Zonta Club of Makati Ayala Foundations; and the Consolidated Mansions
Condominium Corporation) be allowed to be formally impleaded as petitioners.
(b) That respondent FPIC be ordered to submit a certification from the DOE
Secretary that the WOPL is already safe for commercial operation. The certification
should take into consideration the adoption by FPIC of the appropriate leak detection
system to be used in monitoring the entire pipeline's mass input versus mass output.
The certification must also consider the necessity of replacing the pipes with existing
patches and sleeves. In case of failure of respondent FPIC to submit the required
certification from the DOE Secretary within sixty (60) days from notice of the
Honorable Supreme Court's approval of this recommendation, the TEPO must be
made permanent.
(c) That petitioners' prayer for the creation of a special trust fund to answer for similar
contingencies in the future be denied for lack of sufficient basis.
d) That respondent FGC be not held solidarily liable under the TEPO.
(e) That without prejudice to the outcome of the civil and criminal cases filed against
respondents, the individual directors and officers of FPIC and FGC be not held liable
in their individual capacities.
On January 11, 2013, petitioners filed their Motion for Partial Reconsideration19 of the CA's Report
praying that (a) instead of the DOE, the required certification should be issued by the DOST-Metal
Industry Research and Development Center; (b) a trust fund be created to answer for future
contingencies; and ( c) the directors and officers of FPIC and FGC be held accountable.
On January 25, 2013, FPIC filed its Compliance (Re: Department of Energy Certification on the
Black Oil Pipeline)20and submitted the required DOE Certification21 issued on January 22, 2013 by
DOE Secretary Carlos Jericho L. Petilla (Secretary Petilla). On March 14, 2013, petitioners
countered with a Manifestation with Motion22 asserting that FPIC's certification is not compliant with
the CA's requirement. Hence, petitioners moved that the certification should be disregarded, the 30-
day period be deemed to have lapsed, and FPIC be permanently enjoined from operating the BOPL.
On July 30, 2013, the Court issued a Resolution adopting the recommendation of the CA in its
Report and Recommendation that FPIC be ordered to secure a certification from the DOE Secretary
before the WOPL may resume its operations. The pertinent portion of said Resolution reads:
[FPIC] is hereby ORDERED to submit a certification from the DOE Secretary that the pipeline is
already safe for commercial operation. The certification should take into consideration the adoption
by FPIC of the appropriate leak detection system to be used in monitoring the entire pipeline's mass
input versus mass output. The certification must also consider the necessity of replacing the pipes
with existing patches and sleeves x x x.23
The DOE Secretary is DIRECTED to consult the [DOST] regarding the adoption of the appropriate
leak detection system and the necessity of replacing the pipes with existing patches and sleeves.
On October 2, 2013, petitioners, in a Motion for Reconsideration with Motion for Clarification,
emphasized that the CA found FPIC's tests and maintenance program to be insufficient and
inconclusive to establish the WOPL' s structural integrity for continued commercial
operation.24 Furthermore, petitioners point out that the DOE is biased and incapable of determining
the WOPL's structural integrity.
Respondents, for their part, maintain that the DOE has the technical competence and expertise to
assess the structural integrity of the WOPL and to certify the system's safety for commercial
operation.25 Respondents further allege that the DOE is the agency empowered to regulate the
transportation and distribution of petroleum products, and to regulate and monitor downstream oil
industry activities, including "product distribution" through pipelines.26
In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary issued on October 25,
2013 a Certification,27 attesting that the WOPL is safe to resume commercial operations, subject to
monitoring or inspection requirements, and imposing several conditions that FPIC must comply with.
The Certification, in its entirety, reads:
This is to certify that based on the Pipeline Integrity Management Systems (PIMS) being
implemented by [FPIC] for its [WOPL] facility, the same is safe to resume commercial operations.
This certification is being issued after consultation with the [DOST] and on the basis of the following
considerations, to wit:
1. DOE noted the adoption by FPIC of the appropriate leak detection system to be used in
monitoring the pipeline's mass input versus mass output, as well as the other measures of
leak detection and prevention adopted by the latter;
2. DOE further noted that FPIC has already undertaken realignment and reinforcement
works on the current pipeline to remove majority of the patches. FPIC has likewise presented
substantial and adequate documentation showing that the remaining patches and sleeves
are safe, and that the use of such is recognized by the industry and complies with existing
standards;
3. DOE finally noted the results of various tests and inspections done on the pipeline as
indicated in the Manifestation submitted by ,the DOE on March 31, 2012, in the civil case
docketed as CA GR SP No. 00008 and entitled West Tower Condominium, et al. [v.] First
Philippine Industrial Corporation, et al.
This certification is being issued subject to the condition that FPIC will submit itself to regular
monitoring and validation by the Oil Industry Management Bureau (OIMB) of the implementation of
its PIMS, particularly on the following: (a) mass or volume input versus mass or volume output
loss/gain accounting; (b) results of borehole monitoring, (c) inspection of the pipeline cathodic
protection and (d) pressure test.
Further, FPIC shall submit itself to any test or inspection that the DOE and DOST may deem
appropriate for purposes of monitoring the operations of the WOPL facility.
The Court is fully cognizant of the WOPL' s value in commerce and the adverse effects of a
prolonged closure thereof. Nevertheless, there is a need to balance the necessity of the immediate
reopening of the WOPL with the more important need to ensure that it is sound for continued
operation, since the substances it carries pose a significant hazard to the surrounding population
and to the environment.28 A cursory review of the most recent oil pipeline tragedies around the world
will readily show that extreme caution should be exercised in the monitoring and operation of these
common carriers:
(1) On August 1, 2014, a series of powerful explosions from underground pipeline systems
ripped up the streets of Kaohsiung, Taiwan, killing at least 28 people and injuring 299 more.
Further, 23 ,600, 2,268 and 6,000 households were left without gas, power and water,
respectively, in the 2-3 square kilometer blast area.29
(2) On November 22, 2013, an oil pipeline leaked, caught fire, and exploded in Qingdao,
Shangdao Province in China, killing 55 people and injuring more than a hundred more.30
(3) On September 14, 2011, a fuel pipeline exploded in Kenya's capital city, Nairobi,
reducing bodies to dust and flattening homes. At least 7 5 people died in the explosion, while
more than a hundred people were injured.31
(4) In September 2010, a natural gas pipeline ruptured and set off a fireball, killing eight (8)
people and leveling 3 8 homes in San Bruno, California in the United States.32
(5) On July 30, 2004, a rupture of an underground natural gas pipeline buried six (6) meters
in Ghislenghien, Belgium resulted in 24 deaths and over 120 injuries.33
On April 29 and 30, 2014, the DOE organized a dialogue between said government agencies and
the FPIC. There it was stated that during the dialogue, "the division heads and a high profile team
from FPIC, both from operation and management made presentations and answered questions on
pipeline pumping operation and product delivery, and a detailed explanation of the FPIC PIMS'
control measures, condition monitoring measures, and emergency measures, as well as its various
activities and projects implemented since 2010 such as pipeline replacement and realignment in
Pandacan and Bangkal, inspection and reinforcement of all patches in the WOPL, inspection and
reinforcement of a number of reported dents in the WOPL, conduct of successful leak tests, and
installation of boreholes that are gas-tested on a weekly basis, and the safety systems that go with
the daily pipeline operation and maintenance and project execution."34
On August 5, 2014, Secretary Carlos Jericho L. Petilla of the DOE submitted a letter35 recommending
activities and timetable for the resumption of the WOPL operations, to wit:
A. Preparatory to the Test Run
I. FPIC Tasks:
a. Continue submission of monitoring charts, data/reading, accomplishment reports, and
project status for all related activities/works. Respond to comments and prepare for site
inspection.
b. Continue gas testing along the right-of-way using the monitoring wells or boreholes.
Prepare for inspection of right-of-way and observation of gas testing activities on monitoring
wells and boreholes.
c. Expound on the selection of borehole location. For example, identify those located in
pipeline bends, bodies of water, residential areas, repaired portions of the pipelines, dents
and welded joints.
d. Continue submitting status report relating to "Project Mojica" (an ongoing pipeline segment
realignment activity undertaken by FPIC to give way to a flood control project of MMDA in the
vicinity of Mojica St. and Pres. Osmea Highway in Makati City). Prepare for site inspection.
II. Inter-agency undertaking:
a. Conduct onsite inspection of right-of-way
b. Review/check remaining 22 patches that were already inspected and reinforced with
Clockspring sleeves.
i. Determine location of sleeves.
ii. Review of procedures on repair of sleeves.
iii. Random visual inspection of areas easily accessible.
 c. Cathodic protection's onsite inspection on rectifier to check readings
i. Old readings
ii. Current Readings
iii. Segment covered
iv. Criteria for prioritization for corrective action
d. Observe and witness the running/operation of the cleaning pig.
e. Check and validate all calibration certificate of instruments
i. Instrument verification and calibration.
B. Actual Test Run (to be undertaken both by FPIC and inter-agency)
a. Perform Cleaning Pig Run
i. Witness launching and receiving of the cleaning pig.
ii. Handling of the residuals after cleaning.
b. Demonstrate Various Pressure Tests (already being conducted by FPIC)
i. Blocked-in pressure test (Leak Test, not in operation)
ii. In-operation (hourly reading)
c. Continue Current Gas Monitoring (boreholes)
i. Ocular inspection of selected areas
d. Demonstrate mass or volume balance computation during WOPL test run (already being
implemented in the BOPL)
i. 30 days baseline data generation
ii. 30 days computational analysis and monitoring
C. Commissioning or Return to Commercial Operation
I. FPIC Tasks:
a. Continue implementation of the PIMS. Review recommendations from DOE.
b. Continue monthly reporting of operations and maintenance activities with DOE.
c. Continue reporting and coordination with DOE and other government agencies for
implementation of projects.36
Secretary Petilla also recounted to the Court in his August 5, 2014 letter that the DOE, together with
the DPWH and the Metropolitan Manila Development Authority (MMDA), observed the different
milestones of the realignment project being undertaken by FPIC in support of the MMDA Flood
Control Project and stated that the new line segment as laid was coated with corrosion protection
prior to the backfilling of the excavated portion.
On February 3, 2015, the Court required the parties to submit their comment on Sec. Petilla's letter
within ten (10) days from receipt of the Resolution. On various dates, respondents First Gen
Corporation, FPIC, and petitioner West Tower filed their respective comments37 in compliance with
the Court's resolution. The intervenors were unable to comply with the Court's directive; hence, they
are deemed to have waived their right to file their respective comments. The Issues
Having received the October 25, 2013 Certification and the August 5, 2014 Letter from the DOE on
the state of the WOPL, as well as the parties' comments thereon, the following issues defined by the
parties during the March 21, 2012 preliminary conference are now ripe for adjudication:
1. Whether petitioner West Tower Corp. has the legal capacity to represent the other
petitioners and whether the other petitioners, apart from the residents of West Tower and
Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order should be issued to direct the
respondents to perform or to desist from performing acts in order to protect, preserve, and
rehabilitate the affected environment;
3. Whether a special trust fund should be opened by respondents to answer for future similar
contingencies; and
4. Whether FGC and the directors and officers of respondents FPIC and FGC may be held
liable under the environmental protection order.38
The Court's Ruling
We adopt, with modifications, the recommendations of the CA and discuss the foregoing issues in
seriatim.
 I.
Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that petitioners who are affected residents of West
Tower and Barangay Bangkal have the requisite concern to be real parties-in-interest to pursue the
instant petition.
Residents of West Tower and Barangay Bangkal
As defined, a real party-in-interest is the party who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit.39 Generally, every action must be prosecuted
or defended in the name of the real parties-in-interest.40 In other words, the action must be brought
by the person who, by substantive law, possesses the right sought to be enforced.41 Alternatively,
one who has no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff-
in-action for it is jurisprudentially ordained that every action must be prosecuted or defended in the
name of the real party-in-interest.42
In the case at bar, there can be no quibble that the oil leak from the WOPL affected all the
condominium unit owners and residents of West Tower as, in fact, all had to evacuate their units at
the wee hours in the morning of July 23, 2010, when the condominium's electrical power was shut
down. Until now, the unit owners and residents of West Tower could still not return to their
condominium units. Thus, there is no gainsaying that the residents of West Tower are real parties-in-
interest.
There can also be no denying that West Tower Corp. represents the common interest of its unit
owners and residents, and has the legal standing to file and pursue the instant petition. While a
condominium corporation has limited powers under RA 4 726, otherwise known as The
Condominium Act,43 it is empowered to pursue actions in behalf of its members. In the instant case,
the condominium corporation .is the management body of West Tower and deals with everything
that may affect some or all of the condominium unit owners or users.
It is of no moment that only five residents of West Tower signed their acquiescence to the filing of
the petition for the issuance of the Writ of Kalikasan, as the merits of such petition is, as aptly put by
the CA, not measured by the number of persons who signified their assent thereto, but on the
existence of a prima facie case of a massive environmental disaster.
Moreover, the fact that no board resolution was submitted by West Tower Corp. authorizing Manuel
Dy Chuaunsu, Jr. to sign the Verification and Certification of Non-forum Shopping is irrelevant. The
records show that petitioners submitted a notarized Secretary's Certificate44 attesting that the
authority of Chuaunsu to represent the condominium corporation in filing the petition is from the
resolution of the total membership of West Tower Corp. issued during their November 9, 2010
meeting with the requisite quorum. It is, thus, clear that it was not the Board of West Tower Corp.
which granted Chuaunsu the authority but the full membership of the condominium corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and
residents of West Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join
the petitioners.
Organizations that indicated their intention to join the petition
and submitted proof of juridical personality
Anent the propriety of including the Catholic Bishops' Conference of the Philippines, Kilusang
Makabansang Ekonomiya, Inc., Women's Business Council of the Philippines, Inc., Junior Chambers
International Philippines, Inc. - San Juan Chapter, Zonta Club of Makati Ayala Foundations, and the
Consolidated Mansions Condominium Corporation, as petitioners in the case, the Court already
granted their intervention in the present controversy in the adverted July 30, 2013 Resolution.
This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1,
Rule 745 of the Rules of Procedure for Environmental Cases does not require that a petitioner be
directly affected by an environmental disaster. The rule clearly allows juridical persons to file the
petition on behalf of persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation.
Thus, as parties to the case, they are entitled to be furnished copies of all the submissions to the
Court, including the periodic reports of FPIC and the results of the evaluations and tests conducted
on the WOPL.
Having disposed of the procedural issue, We proceed to the bone of contention in the pending
motions. Suffice it to state in the outset that as regards the substantive issues presented, the Court,
likewise, concurs with the other recommendations of the CA, with a few modifications.
II.
Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
To recall, petitioners' persistent plea is for the conversion of the November 19, 2010 TEPO into a
Permanent Environmental Protection Order (PEPO) pursuant to Sec. 3,46 Rule 5 of the Rules of
Procedure for Environmental Cases. For its part, respondent FPIC asserts that regular testing, as
well as the measures that are already in place, will sufficiently address any concern of oil leaks from
the WOPL.
With respect to leak detection, FPIC claims that it has in place the following systems: (a) regular
cleaning scraper runs, which are done quarterly; (b) pipeline integrity gauge (PIG) tests/Intelligent
PIG, now known as in-line inspections (ILI), which is done every five years; (c) pressure monitoring
valves; and ( d) 24-hour patrols. Additionally, FPIC asserted that it also undertook the following: (a)
monitoring of wells and borehole testing/vapor tests; (b) leak tightness test, also known as segment
pressure test; (c) pressure-controlled test; (d) inspection and reinforcement of patches; (e)
inspection and reinforcement of dents; and (f) Pandacan segment replacement.47Furthermore, in
August 2010, with the oil leak hogging the headlines, FPIC hired NDT Middle East FZE (NDT) to
conduct ILI inspections through magnetic flux leakage (MFL) and ultrasonic tests to, respectively,
detect wall thinning of the pipeline and check it for cracks.
The CA, however, observed that all of these tests and measures are inconclusive and insufficient for
purposes of leak detection and pipeline integrity maintenance. Hence, considering the necessary
caution and level of assurance required to ensure that the WOPL system is free from leaks and is
safe for commercial operation, the CA recommended that FPIC obtain from the DOE a certification
that the WOPL is already safe for commercial operation. This certification, according to the CA, was
to be issued with due consideration of the adoption by FPIC of the appropriate leak detection
systems to monitor sufficiently the entire WOPL and the need to replace portions of the pipes with
existing patches and sleeves. Sans the required certification, use of the WOPL shall remain abated.
The Court found this recommendation of the appellate court proper. Hence, We required FPIC to
obtain the adverted DOE Certification in Our July 30, 2013 Resolution. We deemed it proper to
require said certification from the DOE considering that the core issue of this case requires the
specialized knowledge and special expertise of the DOE and various other administrative agencies.
On October 25, 2013, the DOE submitted the certification pursuant to the July 30, 2013 Resolution
of the Court. Later, however, on August 5, 2014, DOE Secretary Carlos Jericho I. Petilla submitted a
letter recommending certain activities and the timetable for the resumption of the WOPL operations
after conducting a dialogue between the concerned government agencies and FPIC.
After a perusal of the recommendations of the DOE and the submissions of the parties, the Court
adopts the activities and measures prescribed in the DOE letter dated August 5, 2014 to be
complied with by FPIC as conditions for the resumption of the commercial operations of the WOPL.
The DOE should, therefore, proceed with the implementation of the tests proposed in the said
August 5, 2014 letter. Thereafter, if it is satisfied that the results warrant the immediate reopening of
the WOPL, the DOE shall issue an order allowing FPIC to resume the operation of the WOPL. On
the other hand, should the probe result in a finding that the pipeline is no longer safe for continued
use and that its condition is irremediable, or that it already exceeded its serviceable life, among
others, the closure of the WOPL may be ordered.
The DOE is specially equipped to consider FPIC's proper implementation and compliance with its
PIMS and to evaluate the result of the various tests conducted on the pipeline. The DOE is
empowered by Sec. 12(b)(l), RA 7638 to formulate and implement policies for the efficient and
economical "distribution, transportation, and storage of petroleum, coal, natural gas."48 Thus, it
cannot be gainsaid that the DOE possesses technical knowledge and special expertise with respect
to practices in the transportation of oil through pipelines.
Moreover, it is notable that the DOE did not only limit itself to the knowledge and proficiency
available within its offices, it has also rallied around the assistance of pertinent bureaus of the other
administrative agencies: the ITDI49of the DOST, which is mandated to undertake technical services
including standards, analytical and calibration services; the MIRDC,50 also of the DOST, which is the
sole government entity directly supporting the metals and engineering industry;51 the EMB52 of the
DENR, the agency mandated to implement, among others, RA 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990) and RA 9275 (Philippine Clean Water Act of
2004); and the BOD of the DPWH, which is mandated to conduct, supervise, and review the
technical design aspects of projects of government agencies.53
The specialized knowledge and expertise of the foregoing agencies must, therefore, be availed of to
arrive at a judicious decision on the propriety of allowing the immediate resumption of the WOPL's
operation. In a host of cases, this Court held that when the adjudication of a controversy requires the
resolution of issues within the expertise of an administrative body, such issues must be investigated
and resolved by the administrative body equipped with the specialized knowledge and the technical
expertise.54 Hence, the courts, although they may have jurisdiction and power to decide cases, can
utilize the findings and recommendations of the administrative agency on questions that demand
"the exercise of sound administrative discretion requiring the special knowledge, experience, and
services of the administrative tribunal to determine technical and intricate matters of fact."55
Justice Leonen, in his dissent, is of the view that the petition should be denied and the TEPO
immediately lifted in light of the DOE's issuance of a certification attesting to the safety of the WOPL
for continued commercial operations, thereby rendering the instant petition moot and academic,
seeking, as it does, the checking of the pipeline's structural integrity. According to his dissent, the
writ of kalikasan issued by the Court has already served its functions and, therefore, is functus
officio. Moreover, he argues that directing the DOE and FPIC to repeat their previous procedures is
tantamount to doubting the agency's performance of its statutorily-mandated tasks, over which they
have the necessary expertise, and implies that said DOE certification is improper, a breach,
allegedly, of the principle of separation of powers.
He also contends that the majority ordered the repetition of the procedures and tests already
conducted on the WOPL because of the fear and uncertainty on its safeness despite the finding of
the DOE in favor of its reopening, taking into consideration the occurrence of numerous pipeline
incidents worldwide. The dissent argues that the precautionary principle should not be so strictly
applied as to unjustifiably deprive the public of the benefits of the activity to be inhibited, and to
unduly create other risks.
The dissent's contentions that the case is already moot and academic, that the writ of kalikasan has
already served its function, and that the delay in the lifting of the TEPO may do more harm than
good are anchored on the mistaken premise that the precautionary principle was applied in order to
justify the order to the DOE and the FPIC for the conduct of the various tests anew. The following
reasons easily debunk these arguments:
1. The precautionary principle is not applicable to the instant case;
2. The DOE certification is not an absolute attestation as to the WOPL's structural integrity
and in fact imposes several conditions for FPIC's compliance;
3. The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the
activities to be conducted preparatory to the reopening of the pipeline; and
4 . There are no conclusive findings yet on the WOPL's structural integrity.
Section 1, Rule 20 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, on
the Precautionary Principle, provides that "[ w ]hen there is lack of full scientific certainty in
establishing a causal link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it."
According to the dissent, the directive for the repetition of the tests is based on speculations, justified
by the application of said principle. This, however, is not the case. Nowhere did We apply the
precautionary principle in deciding the issue on the WOPL's structural integrity.
The precautionary principle only applies when the link between the cause, that is the human activity
sought to be inhibited, and the effect, that is the damage to the environment, cannot be established
with full scientific certainty. Here, however, such absence of a link is not an issue. Detecting the
existence of a leak or the presence of defects in the WOPL, which is the issue in the case at bar, is
different from determining whether the spillage of hazardous materials into the surroundings will
cause environmental damage or will harm human health or that of other organisms. As a matter of
fact, the petroleum leak and the harm that it caused to the environment and to the residents of the
affected areas is not even questioned by FPIC.
It must be stressed that what is in issue in the instant petition is the WOPL's compliance with
pipeline structure standards so as to make it fit for its purpose, a question of fact that is to be
determined on the basis of the evidence presented by the parties on the WOPL's actual state.
Hence, Our consideration of the numerous findings and recommendations of the CA, the DOE, and
the amici curiae on the WOPL' s present structure, and not the cited pipeline incidents as the dissent
propounds.
Consider also the fact that it is the DOE itself that imposed several conditions upon FPIC for the
resumption of the operations of the WOPL. This, coupled with the submission by the DOE of its
proposed activities and timetable, is a clear and unequivocal message coming from the DOE that the
WOPL's soundness for resumption of and continued commercial operations is not yet fully
determined. And it is only after an extensive determination by the DOE of the pipeline's actual
physical state through its proposed activities, and not merely through a short-form integrity
audit,56that the factual issue on the WOPL's viability can be settled. The issue, therefore, on the
pipeline's structural integrity has not yet been rendered moot and remains to be subject to this
Court's resolution. Consequently, We cannot say that the DOE's issuance of the certification
adverted to equates to the writ of kalikasan being functus officio at this point.
The dissent is correct in emphasizing that We defer to the findings of fact of administrative agencies
considering their specialized knowledge in their field. And We, as a matter of fact, acceded to the
DOE' s conclusions on the necessity of the conduct of the various activities and tests enumerated in
Sec. Petilla's letter to this Court dated August 5, 2014. Hence, Our directive for the DOE to
immediately commence the activities enumerated in said Letter, to determine the pipeline's reliability,
and to order its reopening should the DOE find that such is proper.
The dissent also loses sight of the fact that the petition not only seeks the checking of the WOPL's
structural integrity, but also prays for the rehabilitation of the areas affected by the leak, the creation
of a special trust fund, the imposition of liability upon the directors of FPIC, among others. These
issues, undoubtedly, are matters that are not addressed by the DOE certification alone.
Furthermore, these are issues that no longer relate to the WOPL' s structure but to its maintenance
and operations, as well as to the residues of the incident. It will, thus, be improper for Us to simply
dismiss the petition on the basis solely of the alleged resolution of only one of several issues, which
purportedly renders the issue on the WOPL' s soundness moot, without disposing of the other issues
presented.
Lastly, any delay in the reopening of the WOPL, if said delay is for the purpose of making sure that
the pipeline is commercially viable, is better than hastily allowing its reopening without an extensive
check on its structural integrity when experience shows that there were and may still be flaws in the
pipeline. Even the DOE, the agency tasked to oversee the supply and distribution of petroleum in the
country, is well aware of this and even recommended the checking of the patched portions of the
pipeline, among others. In this regard, the Court deems it best to take the necessary safeguards,
which are not similar to applying the precautionary principle as previously explained, in order to
prevent a similar incident from happening in the future.
III.
Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust fund, We note that under Sec. 1, Rule 5 of
the Rules of Procedure for Environmental Cases, a trust fund is limited solely for the purpose of
rehabilitating or restoring the environment. Said proviso pertinently provides:
SEC. 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that purpose subject to the control of the court.
(emphasis supplied)
Furthermore, Sec. 15( e ), Rule 7 of the Rules of Procedure for Environmental Cases expressly
prohibits the grant of damages to petitioners in a petition for the issuance of a writ of kalikasan, viz:
Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
xxxx
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to
the protection, preservation, rehabilitation or restoration of the environment, except the award of
damages to individual petitioners.
A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is
for the creation of a trust fund for similar future contingencies. This is clearly outside the limited
purpose of a special trust fund under the Rules of Procedure for Environmental Cases, which is to
rehabilitate or restore the environment that has presumably already suffered. Hence, the Court
affirms with concurrence the observation of the appellate court that the prayer is but a claim for
damages, which is prohibited by the Rules of Procedure for Environmental Cases. As such, the
Court is of the considered view that the creation of a special trust fund is misplaced. The present
ruling on petitioners' prayer for the creation of a special trust fund in the instant recourse, however, is
without prejudice to the judgment/s that may be rendered in the civil and/or criminal cases filed by
petitioners arising from the same incident if the payment of damages is found warranted.
IV.
Liability of FPIC, FGC and their respective Directors and Officers
On the last issue of the liability of FPIC, FGC and their respective directors and officers, the CA
found FGC not liable under the TEPO and, without prejudice to the outcome of the civil case (Civil
Case No. 11-256, RTC, Branch 58 in Makati City) and criminal complaint (Complaint-Affidavit for
Reckless Imprudence, Office of the Provincial Prosecutor of Makati City) filed against them, the
individual directors and officers of FPIC and FGC are not liable in their individual capacities.
The Court will refrain from ruling on the finding of the CA that the individual directors and officers of
FPIC and FGC are not liable due to the explicit rule in the Rules of Procedure for Environmental
cases that in a petition for a writ of kalikasan, the Court cannot grant the award of damages to
individual petitioners under Rule 7, Sec. 15(e) of the Rules of Procedure for Environmental Cases.
As duly noted by the CA, the civil case and criminal complaint filed by petitioners against
respondents are the proper proceedings to ventilate and determine the individual liability of
respondents, if any, on their exercise of corporate powers and the management of FPIC relative to
the dire environmental impact of the dumping of petroleum products stemming from the leak in the
WOPL in Barangay Bangkal, Makati City.
Hence, the Court will not rule on the alleged liability on the part of the FPIC and FGC officials which
can, however, be properly resolved in the civil and criminal cases now pending against them.
Other Matters
The CA's resolution on petitioners' September 9, 2011 Manifestation (Re: Current Developments)
with Omnibus Motion on the remediation plan in Barangay Bangkal by directing the Inter-Agency
Committee on Environmental Health to submit its evaluation of the said plan prepared by CH2M
Philippines, Inc., for FPIC to strictly comply with the stipulations embodied in the permits issued by
the DENR, and to get a certification from the DENR of its compliance thereto is well taken. DENR is
the government agency tasked to implement the state policy of "maintaining a sound ecological
balance and protecting and enhancing the quality of the environment"57 and to "promulgate rules and
regulations for the control of water, air, and land pollution."58 It is indubitable that the DENR has
jurisdiction in overseeing and supervising the environmental remediation of Barangay Bangkal,
which is adversely affected by the leak in the WOPL in 2010.
With regard to petitioners' March 29, 2012 Supplemental Manifestation about a recent possible leak
in the pipeline, the CA appropriately found no additional leak. However, due to the devastating effect
on the environs in Barangay Bangkal due to the 2010 leak, the Court finds it fitting that the pipeline
be closely and regularly monitored to obviate another catastrophic event which will prejudice the
health of the affected people, and to preserve and protect the environment not only for the present
but also for the future generations to come.
Petitioner's January 10, 2013 Motion for Partial Recommendation of the CA' s Report need not be
discussed and given consideration. As the CA' s Report contains but the appellate court's
recommendation on how the issues should be resolved, and not the adjudication by this Court, there
is nothing for the appellate court to reconsider.
As to petitioner's October 2, 2013 Motion for Reconsideration with Motion for Clarification, the
matters contained therein have been considered in the foregoing discussion of the primary issues of
this case. With all these, We need not belabor the other arguments raised by the parties.
IN VIEW OF THE FOREGOING, the Motion for Partial Reconsideration is hereby DENIED. The
Motion for Reconsideration with Motion for Clarification is PARTLY GRANTED. The Court of
Appeals' recommendations, embodied in its December 21, 2012 Report and Recommendation, are
hereby ADOPTED with the following MODIFICATIONS:
I. The Department of Energy (DOE) is hereby ORDERED to oversee the strict implementation of the
following activities:
A. Preparatory to the Test Run of the entire stretch of the WOPL:
1) FPIC shall perform the following:
a. Continue submission of monitoring charts, data/reading,
accomplishment reports, and project status for all related
activities/works. Respond to comments and prepare for site
inspection.
b. Continue gas testing along the right-of-way using the monitoring
wells or boreholes. Prepare for inspection of right-of-way and
observation of gas testing activities on monitoring wells and
boreholes.
c. Explain the process of the selection of borehole location and
identify those located in pipeline bends, bodies of water, highways,
residential areas, repaired portions of the pipelines, dents and welded
joints, as well other notable factors, circumstances, or exposure to
stresses. d. Set up additional boreholes and monitoring wells
sufficient to cover the entire stretch of the WOPL, the number and
location of which shall be determined by the DOE.
e. Continue submitting status report to the concerned government
agency/ies relating to "Project Mojica," or the on-going pipeline
segment realignment activity being undertaken by FPIC to give way
to a flood control project of the MMDA in the vicinity of Mojica St. and
Pres. Osmea Highway, and prepare for site inspection.
2) The DOE shall perform the following undertakings:
a. Conduct onsite inspection of the pipeline right-of-way, the area
around the WOPL and the equipment installed underground or
aboveground.
b. Review and check the condition of the 22 patches reinforced with
Clockspring sleeves by performing the following:
i. Determine the location of the sleeves
ii. Review the procedure for the repair of the sleeves
iii. Inspect the areas where the affected portions of the WOPL
are located and which are easily accessible.
 c. Inspect onsite the cathodic protection rectifier to check the
following:
i. old and current readings
ii. the segment/s covered by the cathodic protection system
iii. review the criteria for prioritization of corrective action.
d. Observe and witness the running/operation of the intelligent and
cleaning pigs.
e. Check and calibrate the instruments that will be used for the actual
tests on the pipeline, and validate the calibration certificates of these
instruments.
B. During the Actual Test Run:
1) FPIC shall perform the following:
a. Perform Cleaning Pig run and witness the launching and receiving
of the intelligent and cleaning pigs.
b. Demonstrate and observe the various pressure and leakage tests,
including the following:
i. "Blocked-in pressure test" or the pressure test conducted
while all the WOPL's openings are blocked or closed off; and
ii. "In-operation test" or the hourly monitoring of pressure
rating after the pipeline is filled with dyed water and
pressurized at a specified rate.
c. Continue, inspect, and oversee the current gas monitoring system,
or the monitoring of gas flow from the boreholes and monitoring wells
of the WOPL.
d. Check the mass or volume balance computation during WOPL test
run by conducting:
i. 30 days baseline data generation
ii. Computational analysis and monitoring of the data
generated.
II. After FPIC has undertaken the activities prescribed in the preceding paragraph 1, the DOE shall
determine if the activities and the results of the test run warrant the re-opening of the WOPL. In the
event that the DOE is satisfied that the WOPL is safe for continued commercial operations, it shall
issue an order allowing FPIC to resume the operations of the pipeline.
III. Once the WOPL is re-opened, the DOE shall see to it that FPIC strictly complies with the
following directives:
a. Continue implementation of its Pipeline Integrity Management System (PIMS), as
reviewed by the DOE, which shall include, but shall not be limited to:
1. the conduct of daily patrols on the entire stretch of the WOPL, every two
hours;
2. continued close monitoring of all the boreholes and monitoring wells of the
WOPL pipeline;
3. regular periodic testing and maintenance based on its PIMS; and
4. the auditing of the pipeline's mass input versus mass output;
b. submit to the DOE, within ten (10) days of each succeeding month, monthly
reports on its compliance with the above directives and any other conditions that the
DOE may impose, the results of the monitoring, tests, and audit, as well as any and
all activities undertaken on the WOPL or in connection with its operation. The
concerned government agencies, namely: the Industrial Technology Development
Institute (ITDI) and the Metals Industry Research and Development Center (MIRDC),
both under the Department of Science and Technology (DOST), the Environmental
Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), the Bureau of Design (BOD) of the Department of Public Works
and Highways (DPWH), the University of the Philippines - National Institute of
 Geological Science (UP-NI GS) and University of the Philippines - Institute of Civil
Engineering (UP-ICE), the petitioners, intervenors and this Court shall likewise be
furnished by FPIC with the monthly reports. This shall include, but shall not be limited
to: realignment, repairs, and maintenance works; and
c. continue coordination with the concerned government agencies for the
implementation of its projects.
1w phi1

IV. Respondent FPIC is also DIRECTED to undertake and continue the remediation, rehabilitation
and restoration of the affected Barangay Bangkal environment until full restoration of the affected
area to its condition prior to the leakage is achieved. For this purpose, respondent FPIC must strictly
comply with the measures, directives and permits issued by the DENR for its remediation activities in
Barangay Bangkal, including but not limited to, the Wastewater Discharge Permit and Permit to
Operate. The DENR has the authority to oversee and supervise the aforesaid activities on said
affected barangay.
V. The Inter-Agency Committee on Environmental Health under the City Government of Makati shall
SUBMIT to the DENR its evaluation of the Remediation Plan prepared by CH2M Hill Philippines, Inc.
within thirty (30) days from receipt hereof.
VI. Petitioners' prayer for the creation of a special trust fund to answer for similar contingencies in
the future is DENIED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice

ANTONIO T. CARPIO* TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

(No part)
ARTURO D. BRION (On Official Leave)
Associate Justice DIOSDADO M. PERALTA**
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

- No Part -
JOSE PORTUGAL PEREZ
MARTIN S. VILLARAMA, JR.
Associate Justice
Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

(On Official Leave)

See separate dissenting opinion
ESTELA M. PERLAS-BERNABE
(left my vote)
Associate Justice
MARVIC M.V.F. LEONEN***
Associate Justice
FRANCIS H. JARDELEZA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

METROPOLITAN MANILA G.R. Nos. 171947-48

DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, Present:
DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS,[1] PUNO, C.J.,
DEPARTMENT OF HEALTH, QUISUMBING,
DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,
DEPARTMENT OF PUBLIC CARPIO,
WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,
DEPARTMENT OF BUDGET AND CORONA,
MANAGEMENT, PHILIPPINE CARPIO MORALES,
COAST GUARD, PHILIPPINE AZCUNA,
NATIONAL POLICE MARITIME TINGA,
GROUP, and DEPARTMENT OF CHICO-NAZARIO,
THE INTERIOR AND LOCAL VELASCO, JR.,
GOVERNMENT, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, and
- versus - BRION, JJ.
CONCERNED RESIDENTS OF
MANILA BAY, represented and
joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and Promulgated:
JAIME AGUSTIN R. OPOSA,
Respondents. December 18, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of late gained the attention of
the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of
forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by
itself.[2] But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism,
naysayers, and procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature of their respective offices or by
direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores,
and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace
does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier
attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic
efficiency and commitment.

At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life
and, for so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of people and institutions that could have otherwise made
a difference.

This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them
the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed
as Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way
below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated, stemmed from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and
contamination of the marine life of Manila Bay, [for which reason] ALL defendants must be held
jointly and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its
water quality to class B waters fit for swimming, skin-diving, and other forms of contact
recreation.[3]

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating
the pollution of the Manila Bay constitutes a violation of, among others:

(1) Respondents constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and
submit to the RTC a concerted concrete plan of action for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of
the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management
Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water
samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content
ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90
prescribed as a safe level for bathing and other forms of contact recreational activities, or the SB level, is one not
exceeding 200 MPN/100 ml.[4]

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS efforts to reduce pollution along the Manila Bay through the Manila Second
Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its memorandum
circulars on the study being conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean the
Ocean) project for the cleaning of wastes accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision[5] in favor of respondents. The dispositive portion
reads:

WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the
abovenamed defendant-government agencies, jointly and solidarily, to clean up and rehabilitate
Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and
other forms of contact recreation. To attain this, defendant-agencies, with defendant DENR as the
lead agency, are directed, within six (6) months from receipt hereof, to act and perform their
respective duties by devising a consolidated, coordinated and concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:

Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment
facilities in strategic places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and
maintain waste facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also
of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system
such as re-use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life
in Manila Bay and restock its waters with indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up
and rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free
flow of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end
up in Manila Bay. As the construction and engineering arm of the government, DPWH is ordered
to actively participate in removing debris, such as carcass of sunken vessels, and other non-
biodegradable garbage in the bay.

Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies
and require them to have proper facilities for the treatment and disposal of fecal sludge and sewage
coming from septic tanks.
 Defendant DECS, to inculcate in the minds and hearts of the people through education the
importance of preserving and protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs
the Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA)
individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group,
and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45.
The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the
consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And
apart from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that
the cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.

The CA Sustained the RTC

By a Decision[6] of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the
RTC in toto, stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic
functions under existing laws.[7]

Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following
ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED
UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION
DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT
AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DISCHARGED IN THE
WATER SUCH AS FECAL COLIFORMS.

ARGUMENTS

I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF
SPECIFIC POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A
MINISTERIAL ACT OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading
of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of
specific pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate
the ManilaBay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.

Our Ruling
 We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay

Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty. [8] A ministerial duty is one that
requires neither the exercise of official discretion nor judgment. [9] It connotes an act in which nothing is left to the
discretion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist
and imposed by law.[10] Mandamus is available to compel action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way or the other.

Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid
disposal systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency
concerned. They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where
a landfill should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of
discretion.

Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to
comply with and act according to the clear mandate of the law does not require the exercise of discretion. According
to respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of
water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain
that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal;
in other words, it is the MMDAs ministerial duty to attend to such services.

We agree with respondents.

First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand,
and how they are to carry out such duties, on the other, are two different concepts. While the implementation of the
MMDAs mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social
Justice Society v. Atienza[11] in which the Court directed the City of Manila to enforce, as a matter of ministerial duty,
its Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the
so-called Pandacan Terminals within six months from the effectivity of the ordinance. But to illustrate with respect to
the instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory imposition. The
MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This
section defines and delineates the scope of the MMDAs waste disposal services to include:

Solid waste disposal and management which include formulation and implementation of
policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise
include the establishment and operation of sanitary land fill and related facilities and the
implementation of other alternative programs intended to reduce, reuse and recycle solid waste.
(Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides
the minimum operating requirements that each site operator shall maintain in the operation of a sanitary
landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003, [12] enjoining the MMDA and local government
units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for
solid waste and disallowing, five years after such effectivity, the use of controlled dumps.

The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment
Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot
be characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public
functionaries to act officially according to their judgment or conscience. [13] A discretionary duty is one that allows a
person to exercise judgment and choose to perform or not to perform. [14] Any suggestion that the MMDA has the
option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.

A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are
precluded from choosing not to perform these duties. Consider:

(1) The DENR, under Executive Order No. (EO) 192, [15] is the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the
Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government
agency responsible for its enforcement and implementation, more particularly over all aspects of water quality
management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of water
pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent information on
pollution, and [takes] measures, using available methods and technologies, to prevent and abate such pollution.
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide
in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the
effectivity of this Act: Provided, That the Department shall thereafter review or revise and
publish annually, or as the need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within twelve (12) months
following the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months
following the completion of the framework for each designated water management area. Such
action plan shall be reviewed by the water quality management area governing board every five
(5) years or as need arises.

The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the
preparation of the Integrated Water Quality Management Framework.[16] Within twelve (12) months thereafter, it has
to submit a final Water Quality Management Area Action Plan.[17] Again, like the MMDA, the DENR should be made
to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of and
in partnership with various government agencies and non-government organizations, has completed, as of December
2005, the final draft of a comprehensive action plan with estimated budget and time frame, denominated as Operation
Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its phases should more than ever prod
the concerned agencies to fast track what are assigned them under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234, [18] is vested with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns
of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x
 (3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can
prescribe the minimum standards and regulations for the operations of these districts and shall monitor and evaluate
local water standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services
for the collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the
LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the
setting up of efficient and safe collection, treatment, and sewage disposal system in the different parts of the
country.[19] In relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in
Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292), [20] is designated as
the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper utilization
of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550),
is, in coordination with local government units (LGUs) and other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in Philippine waters are
judiciously utilized and managed on a sustainable basis.[21] Likewise under RA 9275, the DA is charged with
coordinating with the PCG and DENR for the enforcement of water quality standards in marine waters. [22] More
specifically, its Bureau of Fisheries and Aquatic Resources(BFAR) under Sec. 22(c) of RA 9275 shall primarily be
responsible for the prevention and control of water pollution for the development, management, and conservation of
the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 292 [23] to
provide integrated planning, design, and construction services for, among others, flood control and water resource
development systems in accordance with national development objectives and approved government plans and
specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services relating
to flood control and sewerage management which include the formulation and implementation of policies, standards,
programs and projects for an integrated flood control, drainage and sewerage system.

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA
was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall
remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood control
and drainage services shall include the removal of structures, constructions, and encroachments built along rivers,
waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6
of PD 979,[24] or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules,
and regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own
rules and regulations in accordance with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall,
under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other
floating craft, or other man-made structures at sea, by any method, means or manner, into or upon
the territorial and inland navigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or

deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from
the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or
description whatever other than that flowing from streets and sewers and passing therefrom in a
liquid state into tributary of any navigable water from which the same shall float or be washed into
such navigable water; and

c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank
of any tributary of any navigable water, where the same shall be liable to be washed into such
navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby
navigation shall or may be impeded or obstructed or increase the level of pollution of such water.
 (7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed
into law on December 13, 1990, the PNP Maritime Group was tasked to perform all police functions over the
Philippine territorial waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over
by the PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not
yet attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and
PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine
pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.[25]

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop, regulate, manage and
operate a rationalized national port system in support of trade and national development.[26] Moreover, Sec. 6-c of EO
513 states that the PPA has police authority within the

ports administered by it as may be necessary to carry out its powers and functions and attain its
purposes and objectives, without prejudice to the exercise of the functions of the Bureau of Customs
and other law enforcement bodies within the area. Such police authority shall include the following:
xxxx

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as
well as movement within the port of watercraft.[27]

Lastly, as a member of the International Marine Organization and a signatory to the International Convention
for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,[28] the Philippines, through the PPA, must
ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the ships
docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels
docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine territorial
waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste
and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions,
within its area of jurisdiction.[29]

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste
matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps and
landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone areas, establishment
or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities without an
environmental compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be allowed
when persons or entities occupy danger areas such asesteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads, parks and playgrounds. The MMDA, as lead agency, in
coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures, constructions,
and other encroachments built in breach of RA 7279 and other pertinent laws along the rivers, waterways,
and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite,
and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned
LGUs to implement the demolition and removal of such structures, constructions, and other encroachments built in
violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to
promulgate rules and regulations for the establishment of waste disposal areas that affect the source of a water supply
or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR,
DPWH, and other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and
disposal of sewage and the establishment and operation of a centralized sewage treatment system. In areas not
considered as highly urbanized cities, septage or a mix sewerage-septage management system shall be employed.

In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1[31] of
Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper
disposal of wastes by private sludge companies through the strict enforcement of the requirement to obtain an
environmental sanitation clearance of sludge collection treatment and disposal before these companies are issued their
environmental sanitation permit.

(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated
to integrate subjects on environmental education in its school curricula at all levels. [32] Under Sec. 118 of RA 8550,
the DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall
launch and pursue a nationwide educational campaign to promote the development, management, conservation, and
proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other hand, it
is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an emphasis
on waste management principles.[33]
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative
Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively
achieve the countrys development objectives.[34]

One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004. This
law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy
of the government, among others, to streamline processes and procedures in the prevention, control, and abatement of
pollution mechanisms for the protection of water resources; to promote environmental strategies and use of appropriate
economic instruments and of control mechanisms for the protection of water resources; to formulate a holistic national
program of water quality management that recognizes that issues related to this management cannot be separated from
concerns about water sources and ecological protection, water supply, public health, and quality of life; and to provide
a comprehensive management program for water pollution focusing on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line
with the countrys development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete
as to what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that
their tasks include the cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of
water pollution in general, not just specific pollution incidents?

Secs. 17 and 20 of the Environment Code

Include Cleaning in General

The disputed sections are quoted as follows:

Section 17. Upgrading of 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 take
such measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.

Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses
 incurred in said operations shall be charged against the persons and/or entities responsible for such
pollution.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup Operations, amended
the counterpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to
be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26

hereof, any person who causes pollution in or pollutes water bodies in excess of the applicable and
prevailing standards shall be responsible to contain, remove and clean up any pollution incident at
his own expense to the extent that the same water bodies have been rendered unfit for utilization
and beneficial use: Provided, That in the event emergency cleanup operations are necessary and the
polluter fails to immediately undertake the same, the [DENR] in coordination with other government
agencies concerned, shall undertake containment, removal and cleanup operations. Expenses
incurred in said operations shall be reimbursed by the persons found to have caused such pollution
under proper administrative determination x x x. Reimbursements of the cost incurred shall be made
to the Water Quality Management Fund or to such other funds where said disbursements were
sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the amendment,
insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency in the cleanup
operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with
the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the twin
provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms cleanup
operations and accidental spills, as follows:

g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or

spilled in water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that
result from accidents such as collisions and groundings.

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the
body of water concerned. They maintain that the application of said Sec. 20 is limited only to water pollution incidents,
which are situations that presuppose the occurrence of specific, isolated pollution events requiring the corresponding
containment, removal, and cleaning operations. Pushing the point further, they argue that the aforequoted Sec. 62(g)
requires cleanup operations to restore the body of water to pre-spill condition, which means that there must have been
a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in
Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of Sec.
20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners posture,
respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain that without
its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations of
businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay. Respondents,
however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational scope
of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in Sec. 17 in relation
to Sec. 20 of PD 1152.
 To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of
their respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted
by the definition of the phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting
definition. As pointed out, the phrases cleanup operations and accidental spills do not appear in said Sec. 17, not even
in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific pollution
incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution incident, as
long as water quality has deteriorated to a degree where its state will adversely affect its best usage. This section, to
stress, commands concerned government agencies, when appropriate, to take such measures as may be necessary to
meet the prescribed water quality standards. In fine, the underlying duty to upgrade the quality of water is not
conditional on the occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable
to a specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In
such instance, the concerned government agencies shall undertake the cleanup work for the polluters account.
Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water
pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is quite
off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the specific
duties of the agencies to clean up come in even if there are no pollution incidents staring at them. Petitioners, thus,
cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup
mandate depends on the happening of a specific pollution incident. In this regard, what the CA said with respect to
the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: PD 1152
aims to introduce a comprehensive program of environmental protection and management. This is better served by
making Secs. 17 & 20 of general application rather than limiting them to specific pollution incidents. [35]

Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct,
they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is
well-nigh impossible to draw the line between a specific and a general pollution incident. And such impossibility
extends to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions
water pollution incidents which may be caused by polluters in the waters of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand,
specifically adverts to any person who causes pollution in or pollutes water bodies, which may refer to an individual
or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the contaminants
eventually end up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and
faceless polluters that they can validly be categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it
would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to
say that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody
has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves
the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD
1152, covers for all intents and purposes a general cleanup situation.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution. The
preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning phase. It is
imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of water be stopped
from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic exercise, for, in no time
at all, the Manila Bay water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA
9275, and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-agencies and
the bureaus and offices under them on continuing notice about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what other
judicial discipline describes as continuing mandamus,[36] the Court may, under extraordinary circumstances, issue
directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the
length of the Ganges River from industrial and municipal pollution.[37]
The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not have
septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers,
the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting
waterways, river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage,
into the major rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major
river systems and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal
or unauthorized structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse these
important bodies of water would be for naught. The DENR Secretary said as much.[38]

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water
Code,[39] which prohibits the building of structures within a given length along banks of rivers and other
waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and lakes throughout their
entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation, navigation, floatage, fishing and
salvage.No person shall be allowed to stay in this zone longer than what is necessary for
recreation, navigation, floatage, fishing or salvage or to build structures of any kind. (Emphasis
added.)

Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the banks
of the Pasig River, other major rivers, and connecting waterways. But while they may not be treated as unauthorized
constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig River and
waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial
establishments set up, within a reasonable period, the necessary waste water treatment facilities and infrastructure to
prevent their industrial discharge, including their sewage waters, from flowing into the Pasig River, other major rivers,
and connecting waterways. After such period, non-complying establishments shall be shut down or asked to transfer
their operations.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their statutory
tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in Metro Manila, the results
of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the metropolitan area is as
alarming as it is shocking. Some highlights of the report:

1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and
Rodriquez dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate
are toxic liquids that flow along the surface and seep into the earth and poison the surface and
groundwater that are used for drinking, aquatic life, and the environment.

2. The high level of fecal coliform confirms the presence of a large amount of human waste
in the dump sites and surrounding areas, which is presumably generated by households that lack
alternatives to sanitation. To say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains
of pathogens seeps untreated into ground water and runs into the Marikina and Pasig Riversystems
and Manila Bay.[40]

Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant
violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall
be established and operated, nor any practice or disposal of solid waste by any person, including
 LGUs which [constitute] the use of open dumps for solid waste, be allowed after the effectivity of
this Act: Provided, further that no controlled dumps shall be allowed (5) years following the
effectivity of this Act. (Emphasis added.)

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended
on February 21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed
standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste
matters in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid waste, and
the like. Some sludge companies which do not have proper disposal facilities simply discharge sludge into the Metro
Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and
unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which
proscribes the introduction by human or machine of substances to the aquatic environment including dumping/disposal
of waste and other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances, from any water,
land or air transport or other human-made structure.

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity
for all concerned executive departments and agencies to immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by law and the nature of their respective offices and
mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants
and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds
to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the
preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations,
real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must
reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform
their basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind
two untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2)
that the cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and advance
the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology
need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill
of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications.[41] Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean
up the bay, they and the men and women representing them cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a
betrayal of the trust reposed in them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528
and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but
with MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the
RTC Decision shall now read:
 WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government
agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to
SB level (Class B sea waters per Water Classification Tables under DENR Administrative Order
No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources, and Sec. 19 of RA
9275, designating the DENR as the primary government agency responsible for its enforcement and implementation,
the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call regular
coordination meetings with concerned government departments and agencies to ensure the successful implementation
of the aforesaid plan of action in accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local Government
Code of 1991,[42] the DILG, in exercising the Presidents power of general supervision and its duty to promulgate
guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment Code (PD 1152),
shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major river systems in their respective areas of
jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws, ordinances, and rules and
regulations. If none be found, these LGUs shall be ordered to require non-complying establishments and homes to set
up said facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines
and other sanctions.

(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest
possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in coordination with the DENR,
is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan
where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to improve and restore the marine life
of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga,
and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of RA
8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and
regulations designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International Convention for the Prevention of Pollution
from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid
and liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and
drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove
allstructures, constructions, and other encroachments established or built in violation of RA 7279, and other applicable
laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws along the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003,
within a period of one (1) year from finality of this Decision.On matters within its territorial jurisdiction and in
connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also
ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective penal
provisions of RA 9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and disposal
of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be non-
complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its
environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA 9003, [49] the DepEd shall integrate
lessons on pollution prevention, waste management, environmental protection, and like subjects in the school curricula
of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends, the importance
of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and the entire
Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of
the Manila Bay, in line with the countrys development objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime
Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of continuing mandamus, shall, from
finality of this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in
accordance with this Decision.
No costs.
SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice
ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
RENATO C. CORONA CONCHITA CARPIO MORALES Associate Justice Associate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAON STRAIT, e.g., TOOTHED
WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in and Represented
herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as
Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of God's
Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE),
SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment
and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII
and in his capacity as Chairperson of the Taon Strait Protected Seascape Management Board,
Bureau of Fisheries and Aquatic Resources (BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR.,
BFAR Regional Director for Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION
CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES,
INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,
RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of the
SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN,
CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS
WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE),
JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and Natural
Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional Director-
Region VII and as Chairperson of the Taon Strait Protected Seascape Management Board, ALAN
ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-Region VII, DOE
Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO.,
LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES,
INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their personal
capacity, alleging that they stand to benefit or be injured from the judgment on the issues. The human
petitioners implead themselves in a representative capacity "as legal guardians of the lesser life-forms
and as responsible stewards of God's Creations."1 They use Oposa v. Factoran, Jr.2 as basis for their
claim, asserting their right to enforce international and domestic environmental laws enacted for their
benefit under the concept of stipulation pour autrui.3As the representatives of Resident Marine Mammals,
the human petitioners assert that they have the obligation to build awareness among the affected
residents of Taon Strait as well as to protect the environment, especially in light of the government's
failure, as primary steward, to do its duty under the doctrine of public trust. 4
Resident Marine Mammals and the human petitioners also assert that through this case, this court will
have the opportunity to lower the threshold for locus standi as an exercise of "epistolary jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and to continue to
define environmental rights in the context of actual cases is commendable. However, the space for legal
creativity usually required for advocacy of issues of the public interest is not so unlimited that it should be
allowed to undermine the other values protected by current substantive and procedural laws. Even rules
of procedure as currently formulated set the balance between competing interests. We cannot abandon
these rules when the necessity is not clearly and convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Taon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were able
to communicate with them; and (d) they received clear consent from their animal principals that they
would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are identical
to what the Resident Marine Mammals would assert had they been humans and the legal strategies that
they invoked are the strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a relationship of guardianship
between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law cannot be
founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights. When
standing becomes too liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that may be authorized
by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the following
article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by law; their
personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the law
grants a juridical personality, separate and distinct from that of each shareholder, partner or
member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine Mammals or
animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of the real party in interest. (2a) 6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another party's
act or omission has caused a direct injury, making his or her interest both material and based on an
enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in interest. A representative may be a trustee of an
express rust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to the principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real party in
interest.10 The representative is an outsider to the cause of action. Second, the rule provides a list of who
may be considered as "representatives." It is not an exhaustive list, but the rule limits the coverage only to
those authorized by law or the Rules of Court.11
These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals are
real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to act in a
representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Taon Strait."12 While relatively new in Philippine jurisdiction, the issue of
whether animals have legal standing before courts has been the subject of academic discourse in light of
the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan explains
as the "guardianship model for nonhuman animals":13
Despite Animal Lovers, there exists a well-established system by which nonhuman animals may obtain
judicial review to enforce their statutory rights and protections: guardianships. With court approval, animal
advocacy organizations may bring suit on behalf of nonhuman animals in the same way court-appointed
guardians bring suit on behalf of mentally-challenged humans who possess an enforceable right but lack
the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural Objects,
Christopher D. Stone asserts that the environment should possess the right to seek judicial redress even
though it is incapable of representing itself. While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses legitimate challenges -
such as identifying the proper spokesman -the American legal system is already well-equipped with a
reliable mechanism by which nonhumans may obtain standing via a judicially established guardianship.
Stone notes that other speechless - and nonhuman - entities such as corporations, states, estates, and
municipalities have standing to bring suit on their own behalf. There is little reason to fear abuses under
this regime as procedures for removal and substitution, avoiding conflicts of interest, and termination of a
guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that AL VA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-profit organizations
with an established history of dedication to the cause and relevant expertise to serve as official guardians
ad !item on behalf of nonhuman animals interests. The American legal system has numerous
mechanisms for representing the rights and interests of nonhumans; any challenges inherent in extending
these pre-existing mechanisms to nonhuman animals are minimal compared to an interest in the proper
administration of justice. To adequately protect the statutory rights of nonhuman animals, the legal
system must recognize those statutory rights independent of humans and provide a viable means of
enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been
urged on behalf of the natural environment. 'Such a model is even more compelling as applied to
nonhuman animals, because they are sentient beings with the ability to feel pain and exercise rational
thought. Thus, animals are qualitatively different from other legally protected nonhumans and therefore
have interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the integrity of
the federal statutes designed to protect them, essentially rendering them meaningless. Sensing that laws
protecting nonhuman animals would be difficult to enforce, Congress provided for citizen suit provisions:
the most well-known example is found in the Endangered Species Act (ESA). Such provisions are
evidence of legislative intent to encourage civic participation on behalf of nonhuman animals. Our law of
standing should reflect this intent and its implication that humans are suitable representatives of the
natural environment, which includes nonhuman animals.14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive disability),
are unable to bring suit for themselves. They are also similar to entities that by their very nature are
incapable of speaking for themselves (e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same cannot
be said about animals.
Animals play an important role in households, communities, and the environment. While we, as humans,
may feel the need to nurture and protect them, we cannot go as far as saying we represent their best
interests and can, therefore, speak for them before the courts. As humans, we cannot be so arrogant as
to argue that we know the suffering of animals and that we know what remedy they need in the face of an
injury.
Even in Hogan's discussion, she points out that in a case before the United States District Court for the
Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that an
emotional response to what humans perceive to be an injury inflicted on an animal is not within the "zone-
of-interest" protected by law.16Such sympathy cannot stand independent of or as a substitute for an actual
injury suffered by the claimant.17 The ability to represent animals was further limited in that case by the
need to prove "genuine dedication" to asserting and protecting animal rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing doctrine
further required ALVA to differentiate its genuine dedication to the humane treatment of animals from the
general disdain for animal cruelty shared by the public at large. In doing so, the court found ALVA 's
asserted organizational injury to be abstract and thus relegated ALVA to the ranks of the "concerned
bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The court
indicated that ALVA might have obtained standing in its own right if it had an established history of
dedication to the cause of the humane treatment of animals. It noted that the Fund for Animals had
standing and indicated that another more well-known advocacy organization might have had standing as
well. The court further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established prior to commencing
legal action. ALVA was not the proper plaintiff because it could not identify previous activities
demonstrating its recognized activism for and commitment to the dispute independent of its desire to
pursue legal action. The court's analysis suggests that a qualified organization with a demonstrated
commitment to a cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.18(Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental Cases.
A citizen suit allows any Filipino to act as a representative of a party who has enforceable rights under
environmental laws before Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet
unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a
citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and
the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a
general circulation in the Philippines or furnish all affected barangays copies of said order.
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans seriously
carry their responsibility including ensuring a viable ecology for themselves, which of course includes
compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given to the
rule on standing. While representatives are not required to establish direct injury on their part, they should
only be allowed to represent after complying with the following: [I]t is imperative for them to indicate with
certainty the injured parties on whose behalf they bring the suit. Furthermore, the interest of those they
represent must be based upon concrete legal rights. It is not sufficient to draw out a perceived interest
from a general, nebulous idea of a potential "injury."20
I reiterate my position in Arigo v. Swift and in Paje v. Casio21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran 22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to environmental concerns
in light of emerging international legal principles. While "intergenerational responsibility" is a noble
principle, it should not be used to obtain judgments that would preclude future generations from making
their own assessment based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a different set of
circumstances. In essence, the unbridled resort to representative suit will inevitably result in preventing
future generations from protecting their own rights and pursuing their own interests and decisions. It
reduces the autonomy of our children and our children 's children. Even before they are born, we again
restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be allowed only
when a) there is a clear legal basis for the representative suit; b) there are actual concerns based
squarely upon an existing legal right; c) there is no possibility of any countervailing interests existing
within the population represented or those that are yet to be born; and d) there is an absolute necessity
for such standing because there is a threat of catastrophe so imminent that an immediate protective
measure is necessary. Better still, in the light of its costs and risks, we abandon the precedent all
together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or she
who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In other words,
he or she must have a cause of action. An action may be dismissed on the ground of lack of cause of
action if the person who instituted it is not the real party in interest.24 The term "interest" under the Rules
of Court must refer to a material interest that is not merely a curiosity about or an "interest in the question
involved." The interest must be present and substantial. It is not a mere expectancy or a future,
contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing as representative
of a .real party in interest. When an action is prosecuted or defended by a representative, that
representative is not and does not become the real party in interest. The person represented is deemed
the real party in interest. The representative remains to be a third party to the action instituted on behalf of
another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an identified
party whose right has been violated, resulting in some form of damage, and (b) the representative
authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under this
rule allows any Filipino citizen to file an action for the enforcement of environmental law on behalf of
minors or generations yet unborn. It is essentially a representative suit that allows persons who are not
real parties in interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and generations yet unborn is
a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity of minors
(represented by their parents) to file a class suit on behalf of succeeding generations based on the
concept of intergenerational responsibility to ensure the future generation's access to and enjoyment of
[the] country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit, putting
into. question its representativeness. Second, varying interests may potentially result in arguments that
are bordering on political issues, the resolutions of which do not fall upon this court. Third, automatically
allowing a class or citizen's suit on behalf of minors and generations yet unborn may result in the
oversimplification of what may be a complex issue, especially in light of the impossibility of determining
future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others. Uninterested
persons will argue for the persons they represent, and the court will decide based on their evidence and
arguments. Any decision by the court will be binding upon the beneficiaries, which in this case are the
minors and the future generations. The court's decision will be res judicata upon them and conclusive
upon the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its potential to
diminish the value of legitimate environmental rights. Extending the application of "real party in interest" to
the Resident Marine Mammals, or animals in general, through a judicial pronouncement will potentially
result in allowing petitions based on mere concern rather than an actual enforcement of a right. It is
impossible for animals to tell humans what their concerns are. At best, humans can only surmise the
extent of injury inflicted, if there be any. Petitions invoking a right and seeking legal redress before this
court cannot be a product of guesswork, and representatives have the responsibility to ensure that they
bring "reasonably cogent, rational, scientific, well-founded arguments"26 on behalf of those they represent.
Creative approaches to fundamental problems should be welcome. However, they should be considered
carefully so that no unintended or unwarranted consequences should follow. I concur with the approach
of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it carefully narrows down
the doctrine in terms of standing. Resident Marine Mammals and the human petitioners have no legal
standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk Development
Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest and as
representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and Pinamungahan, Cebu,
and their families, and the present and future generations of Filipinos whose rights are similarly affected.
The activities undertaken under Service Contract 46 (SC-46) directly affected their source of livelihood,
primarily felt through the significant reduction of their fish harvest. 27 The actual, direct, and material
damage they suffered, which has potential long-term effects transcending generations, is a proper subject
of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners, most
especially when the implied petitioner was a sitting President of the Republic of the Philippines. In G.R.
No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of whales, dolphins,
porpoises, and other cetacean species, human petitioners also impleaded Former President Gloria
Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and undertaking in the ASEAN
Charter to protect Taon Strait."28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent. In
our jurisdiction, only when there is a party that should have been a necessary party but was unwilling to
join would there be an allegation as to why that party has been omitted. In Rule 3, Section 9 of the 1997
Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver
of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to the rights of such necessary party. 29
A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should be
impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the 1997
Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. 30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but who do
not consent should be put within the jurisdiction of the court through summons or other court processes.
Petitioners. should not take it upon themselves to simply imp lead any party who does not consent as a
petitioner. This places the unwilling co-petitioner at the risk of being denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions by
suing his or her alter-egos. The procedural situation caused by petitioners may have gained public
attention, but its legal absurdity borders on the contemptuous. The Former President's name should be
stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. 7586 or the National Integrated Protected Areas
System Act of 1992, and Presidential Decree No. 1234,31 which declared Taon Strait as a protected
seascape. It is unconstitutional because it violates the fourth paragraph of Article XII, Section 2 of the
Constitution.
V
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII, Section
2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd. (JAPEX) is
100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a technical and
financial assistance agreement executed under Article XII, Section 2, paragraph 4 of the 1987
Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of paragraph 1,
but is a validly executed contract under paragraph 4.34 Public respondents further aver that SC-46
neither granted exclusive fishing rights to JAPEX nor violated Central Visayas Fisherfolk Development
Center's right to preferential use of communal marine and fishing resources. 35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. 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 State. With the exception. of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be provided by law. In 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.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization 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. In such agreements, the State
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration, development, and use of
natural resources, but only through either financial agreements or technical ones. This is the clear import
of the words "either financial or technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and 1935
Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or association
at least sixty per centum of the capital of which is owned by such citizens. The Batasang Pambansa, in
the national interest, may allow such citizens, corporations, or associations to enter into service contracts
for financial, technical, management, or other forms of assistance with any foreign person or entity for the
exploitation, development, exploitation, or utilization of any of the natural resources. Existing valid and
binding service contracts for financial, the technical, management, or other forms of assistance are
hereby recognized as such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural resources, with
the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation from
the Constitutional Commission deliberations. The constitutional texts are the product of a full sovereign
act: deliberations in a constituent assembly and ratification. Reliance on recorded discussion of
Constitutional Commissions, on the other hand, may result in dependence on incomplete authorship;
Besides, it opens judicial review to further subjectivity from those who spoke during the Constitutional
Commission deliberations who may not have predicted how their words will be used. It is safer that we
use the words already in the Constitution. The Constitution was their product. Its words were read by
those who ratified it. The Constitution is what society relies upon even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light of the standards
set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted m accordance with a general law that will set standard or
uniform terms, conditions and requirements, presumably to attain a certain uniformity in
provisions and avoid the possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times over
at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give
that branch of government an opportunity to look over the agreement and interpose timely
objections, if any.37 (Emphasis in the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three important
points: (a) whether SC-46 was crafted in accordance with a general law that provides standards, terms,
and conditions; (b) whether SC-46 was signed by the President for and on behalf of the government; and
(c) whether it was reported by the President to Congress within 30 days of execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or the
Oil Exploration and Development Act of 1972.1wphi1 It is my opinion that this law is unconstitutional in
that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization 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. In such agreements, the State
shall promote the development and use of local scientific and technical resources. (Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements the President may enter
into with foreign-owned corporations for exploration and utilization of resources means that service
contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of the 1987
Constitution,38 this inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided the
rights and obligations of the parties should it be discovered that there is oil in commercial quantities in the
area. The Taon Strait being a protected seascape under Presidential Decree No. 1234 39 requires that
the exploitation and utilization of energy resources from that area are explicitly covered by a law passed
by Congress specifically for that purpose, pursuant to Section 14 of Republic Act No. 7586 or the National
Integrated Protected Areas System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and
submitted to the President for recommendation to Congress. Any exploitation and utilization of energy
resources found within NIP AS areas shall be allowed only through a law passed by
Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Taon Strait and, therefore, no such activities could have
been validly undertaken under SC-46. The National Integrated Protected Areas System Act of 1992 is
clear that exploitation and utilization of energy resources in a protected seascape such as Taon Strait
shall only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the requirement
set by paragraph 4 of Article XII, Section 2 for service contracts involving the exploration of petroleum.
SC-46 was entered into by then Department of Energy Secretary Vicente S. Perez, Jr., on behalf of the
government. I agree with the Main Opinion that in cases where the Constitution or law requires the
President to act personally on the matter, the duty cannot be delegated to another public official. 41 La
Bugal highlights the importance of the President's involvement, being one of the constitutional safeguards
against abuse and corruption, as not mere formality:
At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance. They
spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service
contracts.
Instead, they were plainly crafting provisions to. put in place safeguards that would eliminate or
m minimize the abuses prevalent during the marital law regime.42 (Emphasis in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in the
signing or execution of SC-46. The failure to comply with this constitutional requirement renders SC-46
null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of the execution and
existence of SC-46. The reporting requirement is an equally important requisite to the validity of any
service contract involving the exploration, development, and utilization of Philippine petroleum. Public
respondents' failure to report to Congress about SC-46 effectively took away any opportunity for the
legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided under paragraph 4
of Article XII, Section 2. It is, therefore, null and void.
X
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null and
void for being violative of environmental laws protecting Taon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas System
Act of 1992.
As a protected seascape under Presidential Decree No. 1234,43 Taon Strait is covered by the National
Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all components of
the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement and recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby declared the policy of
the State to secure for the Filipino people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of these areas is possible only through cooperation among national government, local and
concerned private organizations; that the use and enjoyment of these protected areas must be consistent
with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which
shall encompass outstanding remarkable areas and biologically important public lands that are habitats of
rare and endangered species of plants and animals, biogeographic zones and related ecosystems,
whether terrestrial, wetland or marine, all of which shall be designated as "protected areas." 44 (Emphasis
supplied)
Pursuant to this law, any proposed activity in Taon Strait must undergo an Environmental Impact
Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the
management plan for protected areas shall be subject to an environmental impact assessment as
required by law before they are adopted, and the results thereof shall be taken into consideration in the
decision-making process.45(Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be secured under the
Philippine Environmental Impact Assessment System before arty project is implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out
in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated Protected
Areas System Act of 1992 additionally requires that a program be approved by the Department of
Environment and Natural Resources, which shall be publicly accessible. The program shall also be
submitted to the President, who in turn will recommend the program to Congress. Furthermore, Congress
must enact a law specifically allowing the exploitation of energy resources found within a protected area
such as Taon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and
submitted to the President for recommendation to Congress. Any exploitation and utilization of energy
resources found within NIPAS areas shall be allowed only through a taw passed by
Congress.47 (Emphasis supplied)
Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46 fell
under Section 14 of the National Integrated Protected Areas System Act of 1992, which they interpret to
be an exception to Section 12. They argue that the Environmental Compliance Certificate is not a strict
requirement for the validity of SC-46 since (a) the Taon Strait is not a nature' reserve or natural park; (b)
the exploration was merely for gathering information; and ( c) measures were in place to ensure that the
exploration caused the least possible damage to the area.49
Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992 was
enacted to recognize the importance of protecting the environment in light of resource exploitation,
among others.50 Systems are put in place to secure for Filipinos local resources under the most favorable
conditions. With the status of Taon Strait as a protected seascape, the institution of additional legal
safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based on
the records, JAPEX commissioned an environmental impact evaluation only in the second subphase of its
project, with the Environmental Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any environmental
assessment contrary to Section 12 of the National Integrated Protected Areas System Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As sentient species, we do
not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use to survive
and to thrive. We are not incapable of mitigating the greed that is slowly causing the demise of our planet.
Thus, there is no need for us to feign representation of any other species or some imagined unborn
generation in filing any action in our courts of law to claim any of our fundamental rights to a healthful
ecology. In this way and with candor and courage, we fully shoulder the responsibility deserving of the
grace and power endowed on our species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987 Constitution,
Republic Act No. 7586, and Presidential Decree No. 1234.
MARVIC M.V.F. LEONEN
Associate Justice

EN BANC

G.R. No. 189185, August 16, 2016

WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON, CRISPIN ALCOMENDRAS,

CORAZON SABINADA, VIRGINIA CATA-AG, FLORENCIA SABANDON, AND LEDEVINA
ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION, INC., DAVAO
FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT
CORPORATION, Respondents.

G.R. No. 189305

 CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO BANANA GROWERS &
EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION, AND LAPANDAY
AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondent.

DECISION

BERSAMIN, J.:

This appeal through the consolidated petitions for review on certiorari assails the decision promulgated on
January 9, 20091 whereby the Court of Appeals (CA) reversed and set aside the judgment rendered on
September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in Davao City upholding the validity and
constitutionality of Davao City Ordinance No. 0309-07, to wit: ChanRobles Vi rt ualawlib ra ry

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

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

SO ORDERED.
Antecedents

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

ORDINANCE NO. 0309-07

Series of 2007

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL

ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY

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

SECTION 1. TITLE. This Ordinance shall be known as "An Ordinance Banning Aerial Spraying as an
chanRoble svirtual Lawlib ra ry

Agricultural Practice in all Agricultural Activities by all Agricultural Entities in Davao City";

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

SECTION 3. DEFINITION OF TERMS:

a. Aerial Spraying - refers to application of substances through the use of aircraft of any form which
chanRoble svirtual Lawlib ra ry

dispenses the substances in the air.

b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to their
agricultural activities;

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

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

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

SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to all agricultural
entities within the territorial jurisdiction of Davao City;

SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced in the territorial
jurisdiction of Davao City three (3) months after the effectivity of this Ordinance.

SECTION 6. BUFFER ZONE - Consistent with national legislation and government regulations, all agricultural
entities must provide for a thirty (30) meter buffer zone within the boundaries of their agricultural
farms/plantations. This buffer zone must be properly identified through Global Positioning System (GPS)
survey. A survey plan showing the metes and bounds of each agricultural farm/plantation must be
submitted to the City Mayor's Office, with the buffer zone clearly identified therein;

SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be punished as follows:

a. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month but not more than
chanRoble svirtual Lawlib ra ry

three (3) months;

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

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

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

SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with any of the
provisions of this Ordinance shall be deemed amended or repealed accordingly.

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

ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang Panlungsod.2 chanroblesv irt uallawl ibra ry

City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007. The ordinance took effect on 3

March 23, 2007 after its publication in the newspaper Mindanao Pioneer.4 Pursuant to Section 5 of the
ordinance, the ban against aerial spraying would be strictly enforced three months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its members, namely:
Davao Fruits Corporation and Lapanday Agricultural and Development Corporation (PBGEA, et al.), filed their
petition in the RTC to challenge the constitutionality of the ordinance, and to seek the issuance of provisional
reliefs through a temporary restraining order (TRO) and/or writ of preliminary injunction.5They alleged that
the ordinance exemplified the unreasonable exercise of police power; violated the equal protection clause;
amounted to the confiscation of property without due process of law; and lacked publication pursuant] to
Section 5116 of Republic Act No. 7160 (Local Government Code).

On May 8, 2007, the residents living within and adjacent to banana plantations in Davao City led by Wilfredo
Mosqueda,7 joined by other residents of Davao City,8 (Mosqueda, et al.) submitted their Motion for Leave to
Intervene and Opposition to the Issuance of a Preliminary Injunction.9 The RTC granted their motion on June
4, 2007.10 chanro bleslaw

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

Judgment of the RTC

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

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

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

SO ORDERED.12 chanroblesv irtuallawl ib rary

The RTC opined that the City of Davao had validly exercised police power13 under the General Welfare
Clause of the Local Government Code;14 that the ordinance, being based on a valid classification, was
consistent with the Equal Protection Clause; that aerial spraying was distinct from other methods of
pesticides application because it exposed the residents to a higher degree of health risk caused by aerial
drift;15 and that the ordinance enjoyed the presumption of constitutionality, and could be invalidated only
upon a clear showing that it had violated the Constitution.16 chanro bleslaw

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

Decision of the CA

PBGEA, et al. appealed,18 and applied for injunctive relief from the CA,19 which granted the application20 and
consequently issued a TRO to meanwhile enjoin the effectivity of the ordinance.21 chan robles law

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

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

The City of Davao and the intervenors filed their respective motions for reconsideration, but the CA denied
the motions on August 7, 2009.23 chan robles law

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

Issues

In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds, namely: ChanRoble sVirt ualawli bra ry

THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF LAW WHICH, PROPERLY
CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION THAT THE DAVAO ORDINANCE IS
CONSTITUTIONAL AND VALID

II

THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE

III
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY RELATED TO THE
PURPOSE IT SEEKS TO ACHIEVE

IV

THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND FAIR

THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC] CONSISTENT WITH DUE
PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human rights over
property rights and the presumption of validity in favor of the ordinance; that the CA preferred the
preservation of the profits of respondents PBGEA, et al. to the residents' right to life, health and
ecology,24 thereby disregarding the benevolent purpose of the ordinance; that the CA assumed the functions
of the lawmaker when it set aside the wisdom behind the enactment of the ordinance; that the CA failed to
apply the precautionary principle, by which the State was allowed to take positive actions to prevent harm
to the environment and to human health despite the lack of scientific certainty; that the CA erred in applying
the "strict scrutiny method" in holding that the ordinance violated the Equal Protection Clause because it
only thereby applied in reviewing classifications that affected fundamental rights; that there was nothing
wrong with prohibiting aerial spraying per se considering that even the aerial spraying of water produced
drift that could affect unwilling neighbors whose, constitutional right to a clean and healthy environment
might be impinged;25 that as far as the three-month period was concerned, the CA should have considered
c ralaw red

that manual spraying could be conducted while the PBGEA, et al. laid down the preparations for the conduct
of boom spraying;26 that "reasonableness" could be more appropriately weighed by balancing the interests
of the parties against the protection of basic rights, like the right to life, to health, and to a balanced and
healthful ecology;27 that PBGEA, et al. did not substantiate their claim of potential profit losses that would
result from the shift; that business profits should remain inferior and subordinate to their fundamental rights
as residents of Davao City, which were the rights that the assailed ordinance has sought to protect;28 that
PBGEA, et al. did not explore other modes of pesticide treatment either as a stop-gap or as a temporary
measure while shifting to truck mounted boom spraying;29 that the imposition of the 30-meter buffer zone
was a valid exercise of police power that necessarily flowed from the protection afforded by the ordinance
from the unwanted effects of ground spraying; that the imposition of the buffer zone did not constitute
compensable taking under police power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw
and Piatt30Patalinghug v. Court of Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and that the
30-meter buffer zone conformed with the ISO 1400033 and the DENR Environmental Compliance Certificate
(ECC) requirement.34 chan robles law

In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be considered and
resolved, to wit:
ChanRob les Vi rtualaw lib rary

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 5 OF
ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE AND AN UNREASONABLE EXERCISE OF
DELEGATED POLICE POWER

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ORDINANCE NO. 0309-
07 IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION;

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ORDINANCE NO. 0309-
07 CONSTITUTES TAKING OF PROPERTY WITHOUT COMPENSATION, THUS, VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE CONSTITUTION

IV

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

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

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

In their comment, the respondents posit that the petition of the City; of Davao should be dismissed for
failure to attach material portions of the records, and for raising factual errors that are not within the realm
of this appeal by petition for review on certiorari;47 that the CA correctly declared the ordinance as
unreasonable due to the impossibility of complying with the three-month transition period; that shifting from
aerial to truck-mounted boom spraying will take at least three years and entails careful planning, equipment
and machineries, civil works, and capital funding of at least P400,000,000.00;48that the Court could rely on
its ruling in City of Manila v. Laguio, Jr.,49 where an ordinance directing an existing establishment to wind up
or to transfer its business was declared as confiscatory in nature, and, therefore, unconstitutional;50 that the
total ban against aerial sprayig, coupled with the inadequate time to shift to truck-mounted boom spraying,
effectively deprives the respondents with an efficient means to control the spread of the Black Sigatoka
disease that threatens the banana plantations; that the ordinance will only expose the plantations to the
virulent disease that is capable of infecting 60% of the plantations on a single cycle51 missed;52 that
compared with other modes of application, aerial spraying is more cost-efficient, safe and accurate; that
truck-mounted boom spraying, for instance, requires 80-200 liters of solution per hectare,53 while manual
spraying uses 200-300 liters of solution per hectare; that aerial spraying oily requires 30 liters per hectare;
that in terms of safety and accuracy, manual spraying is the least safe and accurate,54 and produces more
drift than aerial spraying;55 that due to the 300-liter solution required, the workers will be more exposed to
the solution during manual application and such application will thus be more in conflict with the purpose of
the ordinance to prevent human exposure;56 that the respondents also find the irrigation sprinklers
suggested by the City of Davao as wasteful, unsafe and impractical because it cannot provide the needed
coverage for application of the solution to effectively control. the Black Sigatoka disease; that in contrast,
aerial application, coupled with the latest state of the art technology and equipment, ensures accuracy,
effectiveness, efficiency and safety compared to the other methods of application; that the respondents
vouch for the safety of the fungicides they use by virtue of such fungicides having been registered with the
Fertilizer and Pesticide Authority (FPA) and classified as Category IV,57 and found to be mild; and that oral
ingestion in large doses is required before any adverse effects to humans may result.58 chan robles law

The respondents lament that the ban was imposed without any scientific basis; that the report59prepared by
a fact-finding team (composed of the Vice Mayor, the City Health Officer, The City Planning and
Development Coordinator and the Assistance City Planning and Development Coordinator) organized by the
City of Davao revealed that there was no scientific evidence to support the clamor for the ban against aerial
spraying; that furthermore, national government agencies like the Department of Agriculture (DA),
Department of Health (DOR) and the Department of Trade and Industry (DTI) similarly concluded that there
was no scientific evidence to support the ban;60 that for four decades since the adoption of aerial spraying,
there has been no reported outbreak or any predisposition to ailment connected with the pesticides applied;
that the testimonies of the residents during the trial were mere "emotional anecdotal evidence" that did not
establish any scientific or medical bases of any causal connection between the alleged health conditions
complained of and the fungicides applied during aerial spraying;61 that the allegations of health and
environmental harm brought by the pesticides used to treat the banana plantations were unfounded; that
the 2001 study of the International Agency for Research on Cancer showed that, contrary to the claim of
Dra. Panganiban, the by-product of Mancozeb (Ethylenethiourea or ETU) was "non-genotoxic" and not
expected to produce thyroid cancer;62 that Carlos Mendoza, a geo-hydrologist and geophysicist, testified
that underground water contamination through aerial spraying would be impossible because of the presence
of latex, thick layers of clay and underlying rock formations;63 that even the study conducted by the
Philippine Coconut Authority (PCA) showed that the rhinoceros beetle infestation in coconut plantations
adjacent to the banana plantations was due to the farmer's failure to observe phyto-sanitary measures, not
to aerial spraying;64 that furthermore, aerial spraying is internationally accepted as a "Good Agricultural
Practice" (GAP)65 under the International Code of Conduct on the Distribution and Use of Pesticides by the
United Nations-Food and Agricultural Organization (UN-FAO); that as such, they observe the standards laid
down by the UN-FAO, and utilize aerial spraying equipment that will ensure accuracy, safety and efficiency
in applying the substances, and which more than complies with the requirement under the Guidelines on
Good Practice for Aerial Application of Pesticides (Rome 2001);66 that in addition, they strictly observe
standard operating procedures prior to take-off,67 in-flight68 and post-flight;69 that they substantially
invested in state-of-the-art technology and equipment designed to ensure safety, accuracy, and
effectiveness of aerial spraying operations, to avoid aerial drift;70 that their equipment include: wind meters
(to measure the wind velocity in a specific area), wind cones (to determine the wind direction, and whether
the wind is a headwind, tailwind or a crosswind); central weather station (to measure wind speed, the
temperature and relative humidity), Differential Global Positioning System (DGPS),71Intellimap,72 Control
and Display Unit,73 Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model),74 Intelliflow Spray
Valve System,75 and Target Flow Spray Valve Switch System;76 and that they want to minimize, if not,
eliminate the occurrence of spray drift in order to minimize wastage of resources and reduced efficiency of
spraying programs implemented to control the Black Sigatoka disease.77 chanroble slaw

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

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

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

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

Ruling of the Court

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

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

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

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

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

The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes destruction of the
plant by significantly reducing the leaf area, leading to premature ripening of the produce and resulting in
yield losses of at least 50%.91 Due to its effects on banana export trading, the disease has emerged as a
global concern that has correspondingly forced banana producers to increase the use of chemical
pesticides.92 Protectant fungicides such as Mancozeb, chlorothalonil and Propiconazole are applied to combat
the disease.93 These agricultural chemicals are aerially applied by the respondents in the banana plantations
within the jurisdiction of Davao City to arrest the proliferation of the disease.
Considering that banana export plantations exist in vast monocultures, effective treatment of the Black
Sigatoka disease is done by frequent aerial application of fungicides. This is an expensive practice because it
requires permanent landing strips, facilities for the mixing and loading of fungicides, and high recurring
expense of spray materials.94 The cost of aerial spraying accounts to 15-20% of the final retail price of the
crop, making the technology essentially unavailable to small landholdings that are more vulnerable to the
disease.95 chan roble slaw

Aerial spraying has become an agricultural practice in Davao City since the establishment of the banana
plantations in 1960.96 Out of the 5,205 hectares of commercial plantations devoted to Cavendish banana
being operated by the respondents in Davao City,97 around 1,800 hectares receive treatment through aerial
application. These plantations are situated in Barangays Sirib, Manuel Guianga, Tamayong, Subasta
Dacudao, Lasang, Mandug, Waan, Tigatto and Callawa,98 and are affected by the ban imposed by Ordinance
No. 0309-07. The DTI has issued a statement to the effect that the ban against aerial spraying in banana
plantations "is expected to kill the banana industry," affects the socio-economic development of the
barangays hosting the affected plantations, and has a disastrous impact on export trading. The DTI has
forecasted that the ban would discourage the entry of new players in the locality, which would have a
potential drawback in employment generation.99 chanrobles law

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

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

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

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

The formalities in enacting an ordinance are laid down in Section 53101 and Section 54102 of The Local
Government Code. These provisions require the ordinance to be passed by the majority of the members of
the sanggunian concerned, and to be presented to the mayor for approval. With no issues regarding quorum
during its deliberation having been raised, and with its approval of by City Mayor Duterte not being
disputed, we see no reason to strike down Ordinance No. 0309-07 for non-compliance with the formal
requisites under the Local Government Code.

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

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

Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote
full employment among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely: the general legislative power and
the police power proper. General legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Dayao City,105 to enable the local legislative
body to enact ordinances and make regulations. This power is limited in that the enacted ordinances must
not be repugnant to law, and the power must be exercised to effectuate and discharge the powers and
duties legally conferred to the local legislative body. The police power proper, on the other hand, authorizes
the local government unit to enact ordinances necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the local government unit and its constituents, and
for the protection of their property.106
chan rob leslaw

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

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and healthful ecology, the local government
unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution. Following the
provisions of the Local Government Code and the Constitution, the acts of the local government unit
designed to ensure the health and lives of its constituents and to promote a balanced and healthful ecology
are well within the corporate powers vested in the local government unit. Accordingly, the Sangguniang
Bayan of Davao City is vested with the requisite authority to enact an ordinance that seeks to protect the
health and well-being of its constituents.

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

We disagree with the respondents.

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

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

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

By distinguishing authority from method we face this question: Is a prohibition against aerial spraying a
lawfully permissible method that the local government unit of Davao City may adopt to prevent the
purported effects of aerial drift? To resolve this question, the Court must dig deeper into the intricate issues
arising from these petitions.
 II
Ordinance No. 0309-07 violates the Due Process Clause

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

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

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

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

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

We find for the respondents.

The impossibility of carrying out a shift to another mode of pesticide application within three months can
readily be appreciated given the vast area of the affected plantations and the corresponding resources
required therefor. To recall, even the RTC recognized the impracticality of attaining a full-shift to other
modes of spraying within three months in view of the costly financial and civil works required for the
conversion.115 In the assailed decision, the CA appropriately observed: Cha nRobles Vi rtua lawlib rary

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

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

1. six (6) months for planning the reconfiguration of banana plantations to ensure effective truck-mounted
boom spraying for the adequate protections of the plantations from the Black Sigatoka fungus and other
diseases, while maximizing land use;

2. two (2) months to secure government permits for infrastructure works to be undertaken thereon;

3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as roads, drains,
cable ways, and irrigation facilities, which phase may be completed in eighteen (18) months;

4. importation and purchase of trucks mounted with boom spraying, nurse trucks and protective gears. The
placing of orders and delivery of these equipments, including the training [of] the personnel who would man
the same, would take six (6) months; and cralawlawlibra ry

5. securing the needed capitalization to finance these undertakings would take six (6) months to a year.
Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee, testified that her
committee and the Technical Committee and Engineering Group of PBGEA conducted a feasibility study to
determine the cost in undertaking the shift to ground spraying. Their findings fixed the estimated cost for
the purpose at Php 400 Million.

xxxx

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

xxxx

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

xxxx

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

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

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

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

The position of the respondents is untenable.

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

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

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

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

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

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

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

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

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation
of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed
expectations of the owner. (bold Emphasis supplied)
The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial spraying
within and near the plantations. Although Section 3(e) of the ordinance requires the planting of diversified
trees within the identified buffer zone, the requirement cannot be construed and deemed as confiscatory
requiring payment of just compensation. A landowner may only be entitled to compensation if the taking
amounts to a permanent denial of all economically beneficial or productive uses of the land. The
respondents cannot be said to be permanently and completely deprived of their landholdings because they
can still cultivate or make other productive uses of the areas to be identified as the buffer zones.

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

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

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

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

Based on these parameters, we find for the respondents.

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

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

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

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

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

We partly agree with both parties.

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

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

RESOLUTION NO. ____

Series of 2007

A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN

ALL AGRICULTURAL ENTITIES IN DAVAO CITY

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

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

WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides and pesticides is
being used by investors/companies over large agricultural plantations in Davao City;

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

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

WHEREAS, the unstable wind direction during the conduct of aerial spray application of these chemical
substances pose health hazards to people, animals, other crops and ground water sources;

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

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

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

WHEREAS, aerial spraying of pesticides is undeniably a nuisance.

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

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

NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the health, safety and
peace of mind of all the inhabitants of Davao City, let an ordinance be enacted banning aerial spraying as an
agricultural practice in all agricultural entities in Davao City.
xxxx
The proposed resolution identified aerial spraying of pesticides as a nuisance because of the unstable wind
direction during the aerial application, which (1) could potentially contaminate the Davao City watersheds
and ground water sources; (2) was detrimental to the health of Davao City residents, most especially those
living in the. nearby plantations; and (3) posed a hazard to animals and other crops. Plainly, the mischief
that the prohibition sought to address was the fungicide drift resulting from the aerial application; hence,
the classification based on the intent of the proposed ordinance covered all agricultural entities conducting
aerial spraying of fungicides that caused drift.

The assailed ordinance thus becomes riddled with several distinction issues.

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

Pesticide treatment is based on the use of different methods of application and equipment,135 the choice of
which methods depend largely on the objective of distributing the correct dose to a defined target with the
minimum of wastage due to "drift."136 The term "drift" refers to the movement of airborne spray droplets,
vapors, or dust particles away from the target area during pesticide application.137Inevitably, any method of
application causes drift, which may either be primary or secondary. As fittingly described by scholars:138
Primary drift is the off-site movement of spray droplets at, or very close to, the time of application. For
example, a field application using a boom in a gusty wind situation could easily lead to a primary
drift. Primary spray drift is not product specific, and the active ingredients do not differ in their potential to
drift. However, the type of formulation, surfactant, or other adjuvant may affect spray drift potential.

Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of the gas that
forms when an active ingredient evaporates from plants, soil, or other surfaces. And while vapor drift is an
important issue, it only pertains to certain volatile products. Vapor drift and other forms
of secondary drift are product specific. Water-based sprays will volatize more quickly than oil-based sprays.
However, oil-based sprays can drift farther, especially above 95F, because they are lighter.
Understandably, aerial drift occurs using any method of application, be it through airplanes, ground
sprayers, airblast sprayers or irrigation systems.139 Several factors contribute to the occurrence of drift
depending on the method of application, viz.: ChanRobles Vi rtua lawlib rary

AERIAL AIRBLAST GROUND CHEMIGATION

Crop Application
Droplet size Droplet size
canopy height

Boom
Application height Droplet size Wind speed
height

Wind speed Wind speed Wind speed

Swath adjustment

Canopy

Boom length

Tank mix physical

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

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

Davao City justifies the prohibition against aerial spraying by insisting that the occurrence of drift causes
inconvenience and harm to the residents and degrades the environment. Given this justification, does the
ordinance satisfy the requirement that the classification must rest on substantial distinction?

We answer in the negative.

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

The claim that aerial spraying produces more aerial drift cannot likewise be sustained in view of the
petitioners' failure to substantiate the same. The respondents have refuted this claim, and have maintained
that on the contrary, manual spraying produces more drift than aerial treatment145 As such, the decision of
prohibiting only aerial spraying is tainted with arbitrariness.

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

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

In this respect, the CA correctly observed: ChanRob les Vi rtualawl ib rary

Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through the use of aircraft
of any form which dispenses the substances in the air." Inevitably, the ban imposed therein encompasses
aerial application of practically all substances, not only pesticides or fungicides but including water and all
forms of chemicals, regardless of its elements, composition, or degree of safety.

Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance refers to aerial
spraying as a method of spraying pesticides or fungicides, there appears to be a need to single out
pesticides or fungicides in imposing such a ban because there is a striking distinction between such
chemicals and other substances (including water), particularly with respect to its safety implications to the
public welfare and ecology.

xxxx

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

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

The petitioners should be made aware that the rational basis scrutiny is not based on a simple means-
purpose correlation; nor does the rational basis scrutiny automatically result in a presumption of validity of
the ordinance or deference to the wisdom of the local legislature.148 To reiterate, aside from ascertaining
that the means and purpose of the ordinance are reasonably related, the classification should be based on a
substantial distinction.
However, we do not subscribe to the respondents' position that there must be a distinction based on the
level of concentration or the classification imposed by the FPA on pesticides. This strenuous requirement
cannot be expected from a local government unit that should only be concerned with general policies in local
administration and should not be restricted by technical concerns that are best left to agencies vested with
the appropriate special competencies. The disregard of the pesticide classification is not an equal protection
issue but is more relevant in another aspect of delegated police power that we consider to be more
appropriate in a later discussion.

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

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

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

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

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

Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the method of aerial
spraying as an agricultural practice in all agricultural activities by all entities within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues for the
investment of machineries and equipment capable of aerial spraying. It effectively denies the affected
individuals the technology aimed at efficient and cost-effective operations and cultivation not only of banana
but of other crops as well. The prohibition against aerial spraying will seriously hamper the operations of the
banana plantations that depend on aerial technology to arrest the spread of the Black Sigatoka disease and
other menaces that threaten their production and harvest. As earlier shown, the effect of the ban will not be
limited to Davao City in view of the significant contribution of banana export trading to the country's
economy.

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

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

Furthermore users and applicators of agri-chemicals are also guided by Section 6 Paragraph 2 and 3 under
column of Pesticides and Other agricultural Chemicals of PD 11445 which stated: "FPA shall establish and
enforce tolerance levels and good agricultural practices in raw agricultural commodities; to restrict or ban
the use of any chemical or the formulation of certain pesticides in specific areas or during certain period
upon evidence that the pesticide is eminent [sic] hazards has caused, or is causing widespread serious
damage to crops, fish, livestock or to public health and environment."

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

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

IV
The Precautionary Principle still requires scientific basis

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

The petitioners' plea and argument cannot be sustained.

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

Principle 15

In order to protect the environment, the precautionary approach shall be widely applied by States according
to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental
Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific
certainty in establishing a causal link between human activity and environmental effect.156 In such an event,
the courts may construe a set of facts as warranting either judicial action or inaction with the goal of
preserving and protecting the environment.157 chan rob leslaw

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

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

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

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

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

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

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

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

We uphold the respondents.

An ordinance enjoys the presumption of validity on the basis that: ChanRoblesVi rtua lawlib rary

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

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

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

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

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

The function of pesticides control, regulation and development is within the jurisdiction of the FPA under
Presidential Decree No. 1144.176 The FPA was established in recognition of the need for a technically
oriented government entity177 that will protect the public from the risks inherent in the use of
pesticides.178 To perform its mandate, it was given under Section 6 of Presidential Decree No. 1144 the
following powers and functions with respect to pesticides and other agricultural chemicals, viz.: ChanRobles Vi rtua lawlib rary

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

chanRoble svirtual Lawlib ra ry xxxx

III. Pesticides and Other Agricultural Chemicals

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

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

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

xxxx

5. To inspect the establishment and premises of pesticide handlers to insure that industrial health and safety
rules and anti-pollution regulations are followed;

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

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

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

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City of Davao
performed an ultra vires act. As a local government unit, the City of Davao could act only as an agent of
Congress, and its every act should always conform to and reflect the will of its principal.180 As clarified in
Batangas CATV, Inc. v. Court of Appeals:181
[W]here the state legislature has made provision for the regulation of conduct, it has manifested its
intention that the subject matter shall be fully covered by the statute, and that a municipality, under its
general powers, cannot regulate the same conduct. In Keller vs. State, it was held that: "Where there is no
express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters
which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate
the subject which is completely covered by a general statute of the legislature, may be rendered invalid. x x
x Where the subject is of statewide concern, and the legislature has appropriated the field and declared the
rule, its declaration is binding throughout the State." A reason advanced for this view is that such
ordinances are in excess of the powers granted to the municipal corporation.

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

It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of
the state. An ordinance in conflict with a state law of general character and statewide application is
universally held to be invalid. The principle is frequently expressed in the declaration that municipal
authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law
or repugnant to the general policy of the state. In every power to pass ordinances given to a municipality,
there is an implied restriction that the ordinances shall be consistent with the general law.182 (Emphasis
ours)
For sure, every local government unit only derives its legislative authority from Congress. In no instance can
the local government unit rise above its source of authority. As such, its ordinance cannot run against or
contravene existing laws, precisely because its authority is only by virtue of the valid delegation from
Congress. As emphasized in City of Manila v. Laguio, Jr.:183
The requirement that the enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative power, a delegation of
legislative power from the national legislature. The delegate cannot be superior to the principal or exercise
powers higher than those of the latter.

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

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the jurisdiction of the
FPA, which has issued its own regulations under its Memorandum Circular No. 02, Series of 2009,
entitled Good Agricultural Practices for Aerial Spraying of Fungicide in Banana Plantations.185 While
Ordinance No. 0309-07 prohibits aerial spraying in banana plantations within the City of Davao,
Memorandum Circular No. 02 seeks to regulate the conduct of aerial spraying in banana
plantations186pursuant to Section 6, Presidential Decree No. 1144, and in conformity with the standard of
Good Agricultural Practices (GAP). Memorandum Circular No. 02 covers safety procedures,187 handling188 and
post-application,189 including the qualifications of applicators,190 storing of fungicides,191 safety and
equipment of plantation personnel,192 all of which are incompatible with the prohibition against aerial
spraying under Ordinance No. 0309-07.

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

Devoid of the specific delegation to its local legislative body, the City of Davao exceeded its delegated
authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be struck down also for
being an ultra vires act on the part of the Sangguniang Bayan of Davao City.
We must emphasize that our ruling herein does not seek to deprive the LGUs their right to regulate activities
within their jurisdiction. They are empowered under Section 16 of the Local Government Codeto promote
the general welfare of the people through regulatory, not prohibitive, ordinances that conform with the
policy directions of the National Government. Ordinance No. 0309-07 failed to pass this test as it
contravenes the specific regulatory policy on aerial spraying in banana plantations on a nationwide scale of
the National Government, through the FPA.

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

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

SO ORDERED. chanRoblesvirt ual Lawlib rary

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