West Tower v.

PIC (2015)

Facts:

Respondent FPIC operates two pipelines since 1969, (1) the White Oil Pipeline (WOPL) System, which covers and (b) the
Black Oil Pipeline (BOPL) System.

In May 2010, however, a leakage from one of the pipelines was suspected after the residents of West Tower
Condominium (WestTower) started to smell gas within the condominium. Petitioner FPIC initially disowned any leak from
its oil pipeline.

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.

Issue and Ratio:

1. 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?

NO, 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.

2. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable under the
environmental protection order?

NO, 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.
West Tower v. PIC (2015)

Facts:

Respondent FPIC operates two pipelines since 1969, (1) the White Oil Pipeline (WOPL) System, which covers and (b) the
Black Oil Pipeline (BOPL) System.

In May 2010, however, a leakage from one of the pipelines was suspected after the residents of West Tower
Condominium (WestTower) started to smell gas within the condominium. Petitioner FPIC initially disowned any leak from
its oil pipeline.

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.

Issue:

1. 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?

2. Whether FGC and the directors and officers of respondents FPIC and FGC may be held liable under the
environmental protection order?

Ratio:

1. NO, 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.

2. NO, 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.
CASE: Most Rev. Pedro D. Arigo, et.al. v. Scott H. Swift, et.al. (G.R. No. 206510)

DATE: 16 September 2014

PONENTE: J. Villarama, Jr.

FACTS

Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued

by President Corazon C. Aquino on 11 August 1988.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and

Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of

the Philippines’ oldest ecosystems.

On 6 April 2010, Congress passed R.A. No. 10067 (RA 10067), otherwise known as the

“Tubbataha Reefs Natural Park (TRNP) Act of 2009”, to ensure protection and

conservation of the Tubbataha Reefs into perpetuity for the enjoyment of present and

future generations.

Under the “no take” policy, entry into the waters of the TRNP is strictly regulated and

many human activities are prohibited, penalized or fined, including fishing, gathering,

destroying and disturbing the resources within the TRNP.

In December 2012, the US Embassy in the Philippines requested diplomatic clearance for

the USS Guardian (the ship) “to enter and exit the territorial waters of the Philippines and

to arrive at the port of Subic Bay for the purpose of routine ship replenishment,

maintenance, and crew liberty.”

On 6 January 2013, the ship left Sasebo, Japan for Subic Bay, arriving on 13 January

2013. Two days later, it departed Subic Bay for its next port of call in Makassar,

Indonesia.

On 17 January 2013, while transiting the Sulu Sea, the ship ran aground on the northwest

side of South Shoal of the Tubbataha Reefs. No one was injured in the incident and there

have been no reports of leaking fuel or oil.

On 20 January 2013, US 7

th

Fleet Commander, Vice Admiral Scott Swift expressed regret

for the incident in a press statement.

On 4 February 2013, US Ambassador to the Philippine Harry Thomas, Jr. met with

Department of Foreign Affairs Secretary Albert del Rosario regarding the compensation

for damage to the reef caused by the ship.

By 30 March 2013, the US Navy-led salvage team had finished removing the last piece of

the grounded ship from the coral reef.

 On 17 April 2013, petitioners Arigo, et.al. on their behalf and in representation of their

respective sector/organization and others, including minors or generations yet unborn

filed a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a

Temporary Environmental Protection Order (TEPO) under the Rules of Procedure for

Environmental Cases. Their contentions are:

- The grounding, salvaging and post-salvaging operations of the ship cause and

continue to cause environmental damage of such magnitude as to affect the

provinces of Palawan, Antiques, Aklan, Guimaras, Iloilo, Negros Occidental,

Negros Oriental, Zamboaga del Norte, Basilan, Sulu and Taw-Tawi which events

violate their constitutional rights to a balanced and healthful ecology

- There should be a directive from the Supreme Court for the institution of civil,

administrative and criminal suits for acts committed in violation of environmental

laws and regulations in connection with the grounding incident

- US respondents committed the following violations under RA 10067:

unauthorized entry; non-payment of conservation fees; obstruction of law

enforcement officer; damages to the reef; and destroying and disturbing resources

- The VFA provides for a waiver of immunity from suit

The respondents consist of the following: Scott Swift in his capacity as Commander of

ISSUES

the US 7

th

Fleet; Mark Rice as the Commanding Officer of the ship; President Benigno

Aquino III as the Commander-in-Chief of the Armed Forces of the Philippines; Hon.

Albert del Rosario as the DFA Secretary; Hon. Paquito Ochoa as the Executive Secretary;

Hon. Ramon Paje as the DENR Secretary; Vice Admiral Jose Luis Alano as the

Philippine Navy Flag Officer in Command; Admiral Rodolfo Isorena as Commandant of

the Philippine Coast Guard, Commodore Enrico Efren Evangelista as the Philippine

Coast Guard Palawan, Major Gen. Virgilio Domingo as Commandant of the AFP and Lt.

Gen. Terry Robling as Co-Director of the US Marine Corps. Forces. The Philippine

respondents contend that:

- The grounds relied upon by petitioners for the issuance of TEPO or writ of

Kalikasan have become fait accompli as the salvage operations on the ship were

already completed

- The petition is defective in form and in substance

- The petition improperly raises issues involving VFA between Philippines and

USA

- The determination of the extent of responsibility of the US Government regarding

the damage to the Tubbataha Reefs rests exclusively with the executive branch

1. WON the Court has jurisdiction over the US respondents

2. WON the waiver of immunity provisions of the VFA applies

3. WON the petition has become moot

4. WON the Court can determine the extent of responsibility of the US Government

RULING

1. None. The US respondents were sued in their official capacity as commanding officers of

the US Navy who had control and supervision over the USS Guardian and its crew. The

alleged act or omission resulting in the unfortunate grounding of the USS Guardian on

the TRNP was committed while they were performing official military duties.

Considering that the satisfaction of a judgment against said officials will require remedial

actions and appropriation of funds by the US government, the suit is deemed to be one

against the US itself. The principle of State immunity therefore bars the exercise of

jurisdiction by the Court over the persons of respondents Swift, Rice and Robling.

It is worthy to note that during the deliberations, Justice Antonio Carpio took the

position that the conduct of the US in this case, when its warship entered a restricted area

in violation of RA 10067 and caused damage to the TRNP reef system, brings the matter

within the ambit of Article 31 of the United Nations Convention on the Law of the Sea

(UNCLOS).

While historically, warships enjoy sovereign immunity from suit as extensions of

their flag State, Art. 31 of UNCLOS creates an exception to this rule in cases where they

fail to comply with the rules and regulations of the coastal State regarding passage

through the latter’s internal waters and the territorial sea.

Although the US to date has not ratified the UNCLOS, as a matter of longstanding

policy, the US considers itself bound by customary international rules on the

“traditional uses of the oceans” as codified in UNCLOS.

The Court concurs with Justice Carpio’s view that non-membership in the

UNCLOS does not mean that the US will disregard the rights of the Philippines as a

Coastal State over its internal waters and territorial sea. The Court thus expects the US to

bear “international responsibility under Art. 31 of UNCLOS in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs.

2. No. The waiver of State immunity under the VFA pertains only to criminal jurisdiction

and not to special civil actions such as the present petition for issuance of a writ of

Kalikasan.

In fact, it can be inferred from Section 17, Rule 7 of the Rules of Procedure for

Environmental Cases that a criminal case against a person charged with a violation of an

environmental law is to be filed separately:

“SEC. 17. Institution of separate actions. – The filing of a petition for the

issuance of the writ of kalikasan shall not preclude the filing of separate

civil, criminal or administrative actions.”

A ruling on the application or non-application of criminal jurisdiction provisions

of the VFA to US personnel who may be found responsible for the grounding of the USS

Guardian, would be premature and beyond the province of a petition for a writ of

Kalikasan. The Court found it unnecessary to determine whether such waiver of State

immunity is indeed absolute.

In the same vein, the Court cannot grant damages which have resulted from the

violation of environmental laws. Section 15, Rule 7 of the Rules of Procedure for

Environmental Cases enumerates the reliefs which may be granted in a petition for

issuance of a writ of Kalikasan, to wit:

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:

(a) Directing respondent to permanently cease and desist from committing

acts or neglecting the performance of a duty in violation of environmental

laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, government agency, private

person or entity to protect, preserve, rehabilitate or restore the

environment;

(c) Directing the respondent public official, government agency, private

person or entity to monitor strict compliance with the decision and orders

of the court;

(d) Directing the respondent public official, government agency, or private

person or entity to make periodic reports on the execution of the final

judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced

and healthful ecology or to the protection, preservation, rehabilitation or

restoration of the environment, except the award of damages to

individual petitioners. (Emphasis supplied)

3. Yes, in the sense that the salvage operation sought to be enjoined or restrained had

already been accomplished. However, insofar as the directives to Philippine respondents

to protect and rehabilitate the coral reef structure and marine habitat adversely affected by

the grounding incident are concerned, petitioners are entitled to these reliefs

notwithstanding the completion of the removal of the USS Guardian from the coral reef.

The Court is mindful of the fact that the US and Philippine governments both

expressed readiness to negotiate and discuss the matter of compensation for the damage

caused by the USS Guardian. After all, exploring avenues for settlement of

environmental cases is not proscribed by the Rules of Procedure for Environmental

Cases.

4. No. The Court deferred to the Executive Branch the matter of compensation and

rehabilitation measures through diplomatic channels. Resolution of these issues impinges

on our relations with another State in the context of common security interests under the

VFA.

It is settled that the conduct of the foreign relations of our government is

committed by the Constitution to the executive and legislative – “the political”

departments of the government, and the propriety of what may be done in the exercise of

this political power is not subject to judicial inquiry or decision.

MOST REV. PEDRO ARIGO, et. al., Petitioners,

vs.

SCOTT H. SWIFT, et. al., Respondents.

G.R. No. 206510 September 16, 2014

PONENTE: Villarama

TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit

FACTS:

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US
Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and exit the territorial waters of
the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty.” On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of
the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No one was injured in the incident, and there have been
no reports of leaking fuel or oil.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events
violate their constitutional rights to a balanced and healthful ecology.

ISSUES:

1. Whether or not petitioners have legal standing.

2. Whether or not US respondents may be held liable for damages caused by USS Guardian.

3. Whether or not the waiver of immunity from suit under VFA applies in this case.
ARIGO vs. SWIFT
G.R. No. 206510
735 SCRA 102, SEPTEMBER 16, 2014
EN BANC
VILLARAMA, JR., J.:

Facts:

In 2013, the USS Guardian of the US Navy ran aground on an area near the Tubbataha Reefs, a marine
habitat of which entry and certain human activities are prevented and afforded protection by a Philippine
law. The grounding incident prompted the petitioners to seek for issuance of Writ of Kalikasan with TEPO
from the SC.

Among those impleaded are US officials in their capacity as commanding officers of the US Navy. As
petitioners argued, they were impleaded because there was a waiver of immunity from suit between US and
PH pursuant to the VFA terms.

Petitioners claimed that the grounding, salvaging and post-salvaging operations of the USS Guardian
violated their constitutional rights to a balanced and healthful ecology since these events caused and
continue to cause environmental damage of such magnitude as to affect other provinces surrounding the
Tubbataha Reefs. Aside from damages, they sought a directive from the SC for the institution of civil,
administrative and criminal suits for acts committed in violation of environmental laws and regulations in
connection with the grounding incident. They also prayed for the annulment of some VFA provisions for
being unconstitutional.

Issue 1: W/N the US Government has given its consent to be sued through the VFA

No. The general rule on state’s immunity from suit applies in this case.

First, any waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special
civil actions such as for the issuance of the writ of kalikasan. Hence, contrary to petitioners’ claim, the US
government could not be deemed to have waived its immunity from suit.

Second, the US respondents were sued in their official capacity as commanding officers of the US Navy who
have control and supervision over the USS Guardian and its crew. Since the satisfaction of any judgment
against these officials would require remedial actions and the appropriation of funds by the US government,
the suit is deemed to be one against the US itself. Thus, the principle of State Immunity – in correlation
with the principle of States as sovereign equals “par in parem non habet non imperium” – bars the exercise
of jurisdiction by the court over their persons.

Issue 2: W/N the US government may still be held liable for damages caused to the Tubbataha
Reefs

Yes. The US government is liable for damages in relation to the grounding incident under the customary
laws of navigation.

The conduct of the US in this case, when its warship entered a restricted area in violation of RA 10067 and
caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the UNCLOS.
While historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of
the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and regulations
of the coastal State regarding passage through the latter’s internal waters and the territorial sea.

Although the US to date has not ratified the UNCLOS, as a matter of long-standing policy, the US considers
itself bound by customary international rules on the “traditional uses of the oceans”, which is codified in
UNCLOS.
As to the non-ratification by the US, it must be noted that the US’ refusal to join the UNCLOS was centered
on its disagreement with UNCLOS’ regime of deep seabed mining (Part XI) which considers the oceans and
deep seabed commonly owned by mankind. Such has nothing to do with the acceptance by the US of
customary international rules on navigation. (Justice Carpio)

Hence, non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines
as a Coastal State over its internal waters and territorial sea. It is thus expected of the US to bear
“international responsibility” under Art. 31 in connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. ##

Other Issues

Claim for Damages Caused by Violation of Environmental Laws Must be Filed Separately

The invocation of US federal tort laws and even common law is improper considering that it is the VFA which
governs disputes involving US military ships and crew navigating Philippine waters in pursuance of the
objectives of the agreement.

As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special
civil actions. Since jurisdiction cannot be had over the respondents for being immuned from suit, there is
no way damages which resulted from violation of environmental laws could be awarded to petitioners.

In any case, the Rules on Writ of Kalikasan provides that a criminal case against a person charged with a
violation of an environmental law is to be filed separately. Hence, a ruling on the application or non-
application of criminal jurisdiction provisions of the VFA to a US personnel who may be found responsible
for the grounding of the USS Guardian, would be premature and beyond the province of a petition for a writ
of Kalikasan.

Challenging the Constitutionality of a Treaty Via a Petition for the Issuance of Writ of Kalikasan
is Not Proper

The VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the US as
attested and certified by the duly authorized representative of the US government. The VFA being a valid
and binding agreement, the parties are required as a matter of international law to abide by its terms and
provisions. A petition under the Rules on Writ of Kalikasan is not the proper remedy to assail the
constitutionality of its provisions.