BORACAY FOUNDATION VS. PROVINCE OF AKLAN 1.
(PARTIES) Petitioner Boracay Foundation is a duly registered non-stock
G.R. No. 196870 | 26 June 2012 | Leonardo-de Castro | Santos
PETITIONER: Boracay Foundation Inc.
RESPONDENTS: Province of Aklan, represented by Gov. Marquez, Philippine
Reclamation Authority (PRA), and the DENR-EMB (Region VI)
RECIT-READY: Borocay Island is a tropical island located in the Western
Visayas and of the country’s most popular tourist destinations. Boracay 2010
Summit was held and participated by represenatives from the national
government agencies, LGUs, and the private sector. Their goal was to develop
an action plan for the conservation, restoration, and preservation of Boracay, the
goal in mind is to make it world-class infrastructure. By authority given to him by
the Sangguniang Panlalawigan, Gov. Marquez filed an application PRA to
reclaim 2.64 hectares of land along the foreshores of Brgy. Caticlan. By
subsequent authority given by the former, they also approved that to expand the
project to 40 hectares. Petitioner filed a petition for Environmental Protection
Order before the SC, arguing that the reclamation project is is misclassified as a
single project when it is in fact co-located. Petitioner likewise noted that there was
lack of prior publication consultations and approval of local government agencies
and lack of comprehensive studies to protect the environment. The Court held
that petitioner is correct. The SC noted that respondent DENR-EMB RVI, in
charge to evaluate, the EIAs, of this relclamation project was problematic. The
EIA process must have been able to predict the likely impact of the reclamation
project to the environment and to prevent any harm that may otherwise be
caused. This was neglected by respondent Province. In this case, the project
involves the reclamation of land more than five times the original size of the
orginal reclaimed land. The area prior to construction merely contained a jetty
port, wherein the expansion involved reclamation, a terminal annex building, a 2-
storey commercial building, a health and wellness center, parking, etc. The
documents submitted by respondent were not updated, the data they gathered
was for the late 1990s for the first ECC issued in 1999 for the first jetty port.
DOCTRINE:
An EIA (Environmental Impact Assessment) is a process that involves
predicting and evaluating the likely impacts of a project, including cumulative
impacts; on the environment during construction, commissioning, operation, and
abandonment. It also includes designing appropriate preventive mitigating and
enhancing measures addressing these consequences to protect the environment
and the community’s welfare.
FACTS:
corporation. Its primary purpose is for preserving and maintaining the
culture, natural beauty and ecological balance of Boracay as the crown jewel
of Philippine tourism and a prime tourist destinantion in Asia and the whole
world. Its members include 60 owners of hotel and restaturants, and 5
community organizations. Respondent Aklan is a political subdivision
represented by Gov. Carlito Marquez. PRA is a government entity and its
stated purposes is to reclaim land, including foreshore and submereged
areas.
2. Borocay Island is a tropical island located in the Western Visayas and of the
country’s most popular tourist destinations.
3. More than a decade ago, respondent Province built the Caticalan Jetty Port
and Passenger Terminal at Barangay Caticlan to be the main gateway to
Boracay. It also built the corresponding Cagban Jetty Port and Passenger
Terminal to be the receiving tourists in Boracay.
4. In 2005, Boracay 2010 Summit was held and participated by represenatives
from the national government agencies, LGUs, and the private sector. Their
goal was to develop an action plan for the conservation, restoration, and
preservation of Boracay – thereby making it a world-class land, water and air
infrastructure.
- The Summit formed a report, that given the lack of governmental
support and the influx of tourists, they needed to expand the facilities at
Caticlan due to congestion by inadequate facilities.
- This lend to the conceptualization of the expansion of the port facilities
at Bargangay Caticlan.
5. The Sanggunuiang Barangay of Caticlan issued Res. No. 13, stating that it
learned that respondent Province had filed an application with the DENR for
a foreshore lease of areas along the shorelines of Barangay Caticlan.
- Brgy. Caticlan strongly opposed to the application as the proposed
foreshore lease practically covered almost all the coastlines of the
barangay and thereby diminishing its territorial jurisdiction.
- As a consequence, respondent province the barangay was deprived of
their statutory right of preference in the development and utilization fo
the natural resources within its jurisdiction.
6. By authority given to him by the Sangguniang Panlalawigan, Gov. Marquez
filed an application PRA to reclaim 2.64 hectares of land along the
foreshores of Brgy. Caticlan.
- The financial adviser came up with a fesability study: the financial
component of the said study was for 260M; its suggested financing
scheme was bond flotation.
- Respondent province was then authorized to issue “Caticlan Super
Marina Bonds” for the purpose of funding the renovation of the Caticlan
Jetty Port and Passenger Terminal.
- IMPT FACT! The Sangguniang Panlalawigan authorized Gov. Marquez
to enter into a MOA with PRA for the expansion of their project to
reclaim a total of 40 hectares. This resulted to the implemtation of the
Beach Zone Restation and Protection Marina Development Project.
 - The DENR-EMB BI issued the questioned ECC for Phase 1 of the
Reclamation Project (the 2.6h)
7. LGUs and petitioner opposed the project as a whole. It was only during the
public consultation meeting that they found out about the detailed actions of
respondent Province.
- To strengthen its opposition, petitioner presented Dr. Aliño, an expert
from the UP Marine Science Institute, which he rendered based on the
documents submitted by the Province to obtain the ECC, a full EIA
study is required to assess the reclamation projects likelihood of
rendering critical and lasting effect on Boracay considering the
environmental considerations in the area.
- MERF-UPMSI conducted a joint study to determine the potential impact
of the reclamation project. Dr. Villanoy, a professor from the UPMSI,
said that the project consisting of 2.64 hectares would have insignificant
effect on the coastline of Barangay Caticlan.
- During the 1st Quarter Regular Meeting of the Regional Development
Council, it approved and supported the project covering the 2.64
hectares.
8. Petitioner filed a petition for Environmental Protection Order/Issuance of the
Writ of Continuing Mandamus. The SC issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective
comments to the petition.
9. Petitioner argues that the reclamation of land at the Caticlan slide will
aversely affect the Boracay side and notes that the objective of the project is
for the exploitation of Boracay’s tourist trade. However, petitioner asserts
that Boracay’s white sand beaches, which is what it is widely known for, will
be negatively affected by the project.
- Petitioner complains that respondent Province only applied for an ECC
for Phase 1, thus, unlawfully evading the requirement that co-located
projects within Environmentally Critical Areas must submit a
Programmatic Environmental Statement or Programmatic
Environmental Performance Report Management Plan. They theorize
that the reclamation project is is misclassified as a single project when it
is in fact co-located.
- When respondent Province applied only for an ECC for Phase 1, it
fraudulently classified and misrepresented the project as a non-ECP
(non-enviromentally critical project). They assrert that the choice of
classification was designed to avoid a comprehensive impact
assessment of the reclamation project.
- Hence, respondent DENR-EMB RVI willfully and deliberaly disregarded
its duty to ensure that the environment is protected from harmful
development projects because it allegedly performed only a cursory and
superficial review of the documents submitted by respondents for an
ECC. In fact, the documents submitted were not updated, the data they
gathered was for the late 1990s for the first ECC issued in 1999 for the
first jetty port.
- Petitioner noted that there was lack of prior publication consultations
and approval of local government agencies and lack of comprehensive
studies to protect the environment.
10. Respondent Province argues that petitioner’s allegation of being a co-
located project is baseless as the bigger reclamation project is still on the
conceptualization stage. Both PRA and Province are yet to complete studies
to embark on another project. Thus, the 2.64h project is not a component of
the approved 40h area.
ISSUES: 1. W/N the DENR-EMB RVI committed gadalej in approving the
questioned ECC, thereby deisregarding the EIA? – YES
2. W/N the classification of the project is correct? – NO
RULING:
1. DENR is the government agency vested with delegated powers to review and
evaluate all EIA reports, and to grant or deny ECCs to project proponents. It is the
DENR that has the duty to implement the EIS system. The SC noted that respondent
DENR-EMB’s evaluation of this relclamation project was problematic.
An EIA (Environmental Impact Assessment) is a process that involves predicting
and evaluating the likely impacts of a project, including cumulative impacts; on the
environment during construction, commissioning, operation, and abandonment. It also
includes designing appropriate preventive mitigating and enhancing measures
addressing these consequences to protect the environment and the community’s
welfare.
It then follows that the EIA process must have been able to predict the likely impact of
the reclamation project to the environment and to prevent any harm that may
otherwise be caused. This was neglected by respondent Province.
In this case, the project involves the reclamation of land more than five times the
original size of the orginal reclaimed land. The area prior to construction merely
contained a jetty port, wherein the expansion involved reclamation, a terminal annex
building, a 2-storey commercial building, a health and wellness center, parking, etc.
The EIA report submitted by respondent Province should predict the impact that the
construction of the new buildings on the reclaimed land would have on the
surrounding environment. These new constructions and their environmental
effects were not covered by the old studies that respondent Province
previously submitted for the construction of the original jetty port in 1999, and
which it re-submitted in its application for ECC in this alleged expansion,
instead of conducting updated and more comprehensive studies.
The Court emphasized that any impact on the Boracay side cannot be ignored, as
Caticlan and Boracay are separated only by a narrow strait. It becomes more
imperative b/c of the significant contributions of Boracay’s white-sand beach to the
country’s tourism trade, which requires respondent Province to proceed with utmost
caution in implementing projects within its vicinity.
2. The project can be classified as a national project that affects the environmental governmetn units of Malay and Caticlan. Although both petitioner and respondent
and ecological balance fo local communities, and is covered by the provisions below: Province is interested in the promotion of tourisim in Boracay, the Court mandates
that respondent Province cooperate with DENR-EMB RVI for proper classification and
Section 26. Duty of National Government Agencies in the Maintenance of Ecological environmental impact of the reclamation project is of utmost importance.
Balance. - It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or program
that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop
land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the
local government units, nongovernmental organizations, and other sectors concerned and
explain the goals and objectives of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by

government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to wit,
those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the
depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or forest
cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6)
other projects or programs that may call for the eviction of a particular group of people residing
in the locality where these will be implemented. Obviously, none of these effects will be
produced by the introduction of lotto in the province of Laguna.

It was established during the oral argumetns in this case that this project falls under
Sec. 26 because the commercial establishments to be beuilt on Phase 1 could cause
pollution as it could generate garbage, sewage, and possible toxic fuels.

Under the the LGC, two requisites must be met before a national project that affects
the environmental and ecological balance of local communities can be implemented:

a) Prior consultation with the affected local communities;

b) Prior approval of the project by the appropriate sanggunian.

Absent either of these mandatory requirements, the project’s implemtation is illegal. In

this case, the information dissementation conducted months after the ECC was
issued was insufficient to comply with the requirements. The effect of these twin
requirements is that public consultation should have considered the ecological or
environmental concerns of stakeholders and studied measures alternative to the
project, to avoid or minimize adverse environmental impact or damage.

In this case, respondent province filed its ECC application before it met with the local