THE ENVIRONMENT

AND SUPREME COURT

RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES

NO R MIE BATULA
BALAO D M in d a n a w
Some Slides Taken from ELAC -ALG
Presentation
8 Sep t ember 201 7
PERSPECTIVES AND
CONCEPTS
CARING FOR OUR ENVIRONMENT
 CARING for our ENVIRONMENT
1. The Earth is our common home with the rest of
Gods creation.
2. We are part of creation. Everything on earth is
interconnected.
3. Pollution or abusive action has a corresponding
environmental reaction.
4. Degradation of natural resources has reached
alarming proportions that collective collaboration is
necessary to heal the earth and ensure its feature.
5. We have the power and the responsibility to restore
the environment in our own little way. We can
start with ourselves by being environment-friendly
in everything we do.
Photo by: Health Care Without Harm
Photo @ BAN.org
Post-Consumer Waste:
Making of a Waste Crisis

+ =
 INSIGHT

Our numerous laws have not prevented the

continuing degradation of our natural
resources..and the overall degradation of the state
of environment in the Philippines.

Weak environmental law enforcement is a

continuing problem.

Governance is part of the problem.

 SUPREME COURT
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
 BACKGROUND

Roundtable Discussion on the Prosecution of

Environmental Cases (July 2006)
Asian Environmental Justice Forum in 2007
Creation of Environmental Courts in 2008 (AO No.
23-2008)
Nationwide Forum on Environmental Justice on
April 16 to 17, 2009
Took effect on April 29, 2010
 OBJECTIVES

Protect and advance the constitutional right of the

people to a balanced and healthful ecology
Provide a simple, speedy and inexpensive
procedure for the enforcement of environmental
rights and duties
Introduce and adopt innovations and best practices
ensuring effective enforcement of remedies and
redress for violations of environmental laws
Enable courts to monitor and exact compliance
with orders and judgments in environmental cases
 COVERAGE

Civil cases,
Criminal cases
Special civil actions
involving the enforcement or violations of environmental
laws and other related laws, rules and regulations, and
other existing laws that relate to the conservation,
development, preservation, protection and utilization of the
environment and natural resources
 CIVIL VS CRIMINAL CASES

CIVIL CASE CRIMINAL CASE

Remedy or compensate Punish based on penalty
aggrieved party or imposed by law the
reparation or offender
indemnification of
offended party for the
damage or injury
The State (People of the
Private persons (Plaintiff
Philippines) and private
and defendant) individual (accused)
New Civil Code and
Revised Penal Code and
other laws other laws
 LAWS COVERED

Act No. 3572 (Prohibition Against Cutting of

Tindalo, Akli, and Molave Trees)
Presidential Decree No. 705 (Revised Forestry Code)
P.D. No. 856 (Sanitation Code)
P.D. No. 979 (Marine Pollution Decree)
P.D. No. 1067 (Water Code)
P.D. No. 1151 (Philippine Environmental Policy of
1977)
 LAWS COVERED
P.D. No. 1433 (Plant Quarantine Law of 1978)
P.D. 1586 (Establishing an Environmental Impact
Statement System Including Other Environmental
Management Related Measures and for Other
Purposes)
Republic Act No. 3571 (Prohibition Against the
Cutting, Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of
Scenic Value along Public Roads, in Plazas, Parks,
School Premises or in any Other Public Ground)
 LAWS COVERED
R.A. No. 4850 (Laguna Lake Development Authority
Act)
R.A. No. 6969 (Toxic Substances and Hazardous
Waste Act)
R.A. No. 7076 (Peoples Small Scale Mining Act);
R.A. No. 7586 (National Integrated Protected Areas
System Act including all laws, decrees, orders,
proclamations and issuances establishing protected
areas)
R.A. No. 7611 (Strategic Environmental Plan for
Palawan Act)
 LAWS COVERED

R.A. 7942 (Philippine Mining Act)

R.A. 8371 (Indigenous Peoples Rights Act)
R.A. No. 8550 (Philippine Fisheries Code)
R.A. No. 8749 (Clean Air Act)
R.A. No. 9003 (Ecological Solid Waste Management
Act)
R.A. No. 9072 (National Caves and Cave Resource
Management Act)
 LAWS COVERED

R.A. No. 9147 (Wildlife conservation and Protection

Act)
R.A. No. 9175 (Chainsaw Act)
R.A. No. 9275 (Clean Water Act)
R.A. 9483 (Oil Spill Compensation Act of 2007)
 OTHER APPLICABLE LAWS

Commonwealth Act No. 141 (The Public Land Act)

R.A. No. 6657 (Comprehensive Agrarian Reform Law
of 1988)
R.A. No. 7160 (Local Government Code of 1991)
R.A. No. 7161 (Tax Laws Incorporated in the Revised
Forestry Code and Other Environmental Laws
(Amending the National Internal Revenue Code)
R.A. No. 7308 (Seed Industry Development Act of
1992)
 OTHER APPLICABLE LAWS

R.A. No. 7900 (High Value Crops Development Act)

R.A. No. 8048 (Coconut Preservation Act)
R.A. No. 8435 (Agriculture and Fisheries
Modernization Act of 1997)
R.A. No. 9522 (The Philippine Archipelagic
Baselines Law)
R.A. No. 9593 (Renewable Energy Act of 2008)
 OTHER APPLICABLE LAWS

R.A. No. 9637 (Philippine Biofuels Act)

Other existing laws that relate to the conservation,
development, preservation, protection and
utilization of the environment and natural resources
Total laws covered mentioned: 35 laws
 COURTS COVERED
Civil or criminal environmental cases in
(1) Regional Trial Court
(2) Metropolitan Trial Court
(3) Municipal Trial Court in Cities
(4) Municipal Trial Court
(5) Municipal Circuit Trial Court.
Writ of continuing mandamus: Regional Trial
Court, Court of Appeals, or the Supreme Court
Writ of kalikasan: Court of Appeals, or the
Supreme Court only
 HIGHLIGHTS OF THE RULES

(1) Citizen Suits

(2) Consent Decree
(3) Environmental Protection Order
(4) Writ of Kalikasan
(5) Writ of Continuing Mandamus
(6) Strategic Lawsuits against Public Participation
(SLAPP)
(7) Precautionary Principle
 CITIZEN SUITS
Any Filipino citizen whether an
individual or a corporation in
representation of others including
minors or generations yet unborn
may file action to enforce rights or
obligations under environmental
laws
Liberalizes standing for all cases
filed enforcing environmental cases,
collapses the traditional rule on
personal and direct interest, on the
principle that humans are stewards
of nature
 CITIZEN SUITS
Enables litigants enforcing environmental rights to
file their cases as citizen suits
Through a citizens suit, direct injury to a petitoner
or complainant is no longer required for purposes
of filing a case
Citizen suits permit deferment of payment of filing
fees until after the judgment
Aim:
encourage public participation in law enforcement
and make filing of environmental cases easier
 IMPLICATIONS AND CONCERNS

The citizen suit is limited to Filipino citizens and

one that is filed in the public interest, thus, no proof
of personal injury is required.
It may be filed for all types of environmental cases.
Publication is permissive and non-jurisdictional and
can encourage public participation (allow other
persons to join as co-plaintiffs).
Citizen suits under Clean Air Act and Solid Waste
Management Act shall be governed by their
respective provisions.
 CONSENT DECREE

A judicially-approved settlement or
agreement between the parties based
on public interest and public policy to
protect and preserve the
environment
Allows for a compromise agreement
between two parties in
environmental litigation over issues
that would normally be litigated in
court, and other matters that may not
necessarily be of issue in court
An innovative way to resolve
environmental cases
 IMPLICATIONS AND CONCERNS

Local communities, LGUs and civil

society groups must be capacitated
on negotiation and mediation
principles and procedures, to ensure
that
(i) manipulation by business
groups will not succeed;
(ii) community principles and
interests will not be
unfavorably compromised.
Courts/judges must have a good
sense of community issues.
 SPEEDY PROCESS

CIVIL CASES
Require all evidence to be attached
to the complaint and the answer
Some pleadings or motions are
prohibited, e.g. MTD, Motion for
extension of time, etc.
Pre-trial is maximized
One (1) day examination of witness
 SPEEDY PROCESS

Use of consent decree

Direct examination is made through affidavits
(question-and-answer form; similar to judicial
affidavit), Hence, long process of Q & A in court is
no longer required.
Examination of witness should be completed in 1 day
only
Only one (1) year for trial and decision
making - The judge must file a petition with the
Supreme Court to ask for extension.
 SPEEDY PROCESS
Memorandum submitted in
electronic form (e.g., through e-
mail) within a non-extendible period.
Immediate implementation of
decisions directing the performance
of acts for the protection, preservation
or rehabilitation of the environmental,
even if an appeal has been filed
 SPEEDY PROCESS

CRIMINAL CASES
Innovations similar to civil cases
Extensive use of pre-trial
Affidavits instead of direct
examination
Short period to dispose of the
criminal case ( 10 months from date
of arraignment)
 SPEEDY PROCESS

CRIMINAL CASES
Before judge grants bail application, the accused is
required to sign a document stating that s/he
promises to attend the arraignment and whenever
required by the court), and should s/he fail to do so,
the judge is authorized to enter a plea of not guilty on
behalf of the accused, and proceed to trial.
 Strategic Lawsuits against Public
Participation (SLAPP)

An action filed to harass, vex,

exert undue pressure or stifle any
legal recourse that a person,
institution or the government has
taken or may take in the
enforcement of environmental
laws, protection of environment
or assertion of environmental
rights
 SLAPP IN CIVIL CASES

Defendant may use SLAPP as a defense, write this

in the answer
Summary hearing (within 30 days)
Only substantial evidence is required.
Substantial Evidence more than a mere scintilla
of evidence or relevant evidence as reasonable
mind might accept as adequate to support a
conclusion, equally reasonable, might conceivably
think otherwise
Preponderance of evidence - evidence which is
more convincing to the court as worthy of belief
compared to other partys opposing evidence.
 SLAPP IN CRIMINAL CASES

Unlike civil cases, the manner in alleging that a

criminal case is a SLAPP is through a motion to
dismiss rather than a motion to quash.
Note: there is no provision on prohibited pleadings
under criminal procedure, hence the defense of
SLAPP can be validly raised in a motion to dismiss.
Summary hearing is provided
The prosecution preponderance of evidence is
required for a court to dismiss the case.
The accused only substantial evidence
 IMPLICATIONS AND CONCERNS

Complaints and petitions must make sure

beforehand that evidences to support cases are solid
 PRECAUTIONARY PRINCIPLE

States that when human activities may lead to

threats of serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or diminish
that threat.
Applies when there is a lack of scientific certainty in
establishing the link between human activity and
environmental effect
 PRECAUTIONARY PRINCIPLE

Finds direct application in the evaluation of

evidence in cases before the courts
Bridges the gap in cases where scientific certainty in
factual findings cannot be achieved
By applying the precautionary principle, the court
may construe a set of facts as warranting either
judicial action or inaction, with the goal of
preserving and protecting the environment
Bias is created in favor of the constitutional right of
the people to a balanced and healthful ecology
 EVIDENCE PRECAUTIONARY
PRINCIPLE

Precautionary principle should be treated as a

principle of last resort, where application of the
Regular Rules of Evidence would cause an
inequitable result for the environmental plaintiff ----
(a) settings in which the risks of harm are uncertain;
(b) settings in which the harm be irreversible and
what is lost is irreplaceable; (c ) settings in which
the harm that might result would be serious.
 PRECAUTIONARY PRINCIPLE

Standards for application:

(1) Threats to human life or health;
(2) Inequity to present or future
generations;
(3) Prejudice to the environment without
legal consideration of the
environmental rights of those
affected.
Note: The provisions are couched in
general terms to permit ample
judicial discretion in its application.
Its application is limited in cases
where there is truly a doubt in the
evidence available.
 PROVISIONAL REMEDIES

Attachment under Rule 127 of the Rules of Court

may be availed of
Applicability of TEPO and EPO in appropriate
situations in criminal prosecution. Some criminal
cases may have considerable impact on the
environment.
 ENVIRONMENTAL
PROTECTION ORDER
ENVIRONMENTAL PROTECTION ORDER
(EPO)

an order issued by the court directing or

enjoining any person or government agency to
perform or desist from performing an act in
order to protect, preserve or rehabilitate the
environment
Integrates both prohibitive and mandatory reliefs to
appropriately address the factual circumstances
surrounding the case
Can be prayed for in civil and criminal cases and in the
writs of kalikasan and continuing mandamus
Can be an ancillary remedy, as Temporary Environmental
Protection Order or TEPO
 TEPO
Issued in matters of extreme urgency and applicant will
suffer grave injustice and irreparable injury
May be issued ex-parte effective for 72 hours from the
date of receipt of the TEPO by the party or person
enjoined
Summary hearing; procedure based on TRO issuances
under Rules of Court
Court to monitor existence of acts which are subject of
the TEPO
Applicant exempted from posting of bond
SPECIAL CIVIL ACTIONS

SPECIAL WRITS
WRIT OF KALIKASAN
 NATURE AND PURPOSE

Extraordinary remedy
Provides an immediate relief or remedy to person/s
whose constitutional right to a balanced and
healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public
official or employee, or private individual or entity,
involving environmental damage of such magnitude
as to prejudice the life, health or property of
inhabitants in two or more cities or provinces
 WHO CAN AVAIL

On behalf of persons whose constitutional right to a balanced

and healthful ecology is violated, or threatened with violation
by an unlawful act or omission of a public official or
employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or
provinces, the following may file:
Natural person (human beings)
Juridical person (i.e. corporations)
Entity authorized by law
PO, NGO, or any public interest group (PIG) accredited by or
registered with any government agency
WHO MAY BE INCLUDED AS RESPNDENTS

Public officials or employees

Private persons or corporations, organizations,
associations, etc.
 CONTENTS OF PETITION FOR WRIT
OF KALIKASAN

Personal circumstances of petition

Name, personal circumstances of respondents
Environmental law, rule, regulation violated or
threatened to be violated
Act or omission complained of, and the
environmental damage
All relevant and material evidence
Reliefs including prayer for TEPO
Verification and certificate of non-forum shopping
 WRIT OF KALIKASAN

Filed with Supreme Court or with any of

the stations of the Court of Appeals
Parties are exempted from payment of
docket fees
Shall not preclude the filing of separate
civil, administrative and criminal actions
Appeal to the SC (under Rule 45) may raise
questions of fact
 WRIT OF KALIKASAN

When granted, the SC or CA , may order the

following:
Permanently cease and desist from violating
environmental cases or committing acts or
neglecting performance of duty
Protect, preserve, rehabilitate, restore the
environment
Respondents to monitor strict compliance
Direct all respondents to write periodic reports
Other reliefs
NOTE: DAMAGES MAY NOT BE AWARDED
 IMPLICATIONS AND CONCERNS

Areas without two cities but biodiversity hotspots

(eg. Palawan), and threatened with resource
extractive projects and environmental problems
cannot avail of the writ, but will resort to civil
actions
Magnitude of environmental problem must affect a
large number of citizens; integrative and
coordinative work on the ground must be done.
 IMPLICATIONS AND CONCERNS
Communities, LGUs and groups from at least two
cities and provinces affected by large-scale
environmental problems caused by massive
resource extractive projects can study the
possibility of availing of this writ (eg. those affected
by oil exploration, oil spills, mining, forest
conversion projects).
We need to take advantage of discovery measures.
Documentation and research and information
dissemination work must be planned.
WRIT OF CONTINUING
MANDAMUS
WRIT OF CONTINUING MANDAMUS

a writ issued by a court in an environmental case

directing any agency or instrumentality of the
government or officer thereof to perform an act or
series of acts decreed by final judgment which shall
remain effective until judgment is fully satisfied
 NATURE AND PURPOSE
Availed of to compel the performance of an act
specifically enjoined by law, and permits the court
to retain jurisdiction after judgment in order to
ensure successful implementation of reliefs
mandated under the courts decision
Issuance of a Temporary EPO or TEPO is made
available as an auxiliary remedy prior to the
issuance of the writ itself
Exempt from payment of docket fees
there is no other plain, speedy and adequate
remedy in the ordinary course of law
 ACTS COVERED BY THE WRIT

Unlawful neglect in the performance of an act or

duty by any office or officer od the government, in
connection with the enforcement or violation of an
environmental law, rule, regulation of a right therein
Unlawful exclusion of another from the use or
enjoyment of such right
 WHO CAN AVAIL

Person/s personally aggrieved by the unlawful

neglect or unlawful exclusion
 WHO MAY BE THE RESPONDENTS?

An agency or instrumentality of the government

Any officer of the agency or instrumentality of the
government
 CONTENTS OF THE PETITION

Facts of the case

All evidence
Environmental law, rule or regulation
Reliefs
Verification and Certificate of Non-forum Shopping
WHERE TO FILE AND OTHER RULES

Regional Trial Court exercising jurisdiction over the

territory where the actionable neglect or omission
occurred or with the Court of Appeals or the
Supreme Court
No filing fee required
Procedurally, its filing before the courts is similar to
the filing of an ordinary writ of mandamus
 COURT ORDER MAY CONTAIN

Require the respondents to perform acts or series of

acts until judgment is fully satisfied
Grant other reliefs
Require respondents to submit periodic and final
reports
May order also agency to monitor the respondents
compliance with the judgment
 JUDGMENT AND EXECUTION

Judgment not stayed by appeal

TEPO converted to permanent
EPO
Issuance of Writ of Continuing
Mandamus
Monitoring of Compliance with
judgment and orders of the court
by a commissioner
Return of Writ of Execution
 IMPLICATIONS AND CONCERNS

As this writ can exact accountability and compliance

from government agencies and private corporations,
can this be an opportunity to push for rehabilitation
or restoration of destroyed forests, watersheds,
ancestral territories, marine protected areas,
CBFMAs, etc.?
Communities, POs and NGOs can consider
nationwide action on specific projects (eg. Mining),
or compelling DENR or other agencies to perform
mandated actions.
 WRIT OF KALIKASAN VS. CONTINUING
MANDAMUS

WRIT OF KALIKASAN WRIT CONTINUING

MANDAMUS
As to Subject Matter Unlawful act or omission/life/Heath or Neglect or exclusion/Law/
property/magnitude Rule/Right

As to Petitioner Any person or representative/Agent One who is personally

(PO/NGO/PIG-Public Interest Group) aggrieved

As to Respondent Public or private entity or individual Government Officers

As to Ancillary TEPO TEPO

Remedy
Venue SC or CA SC/CA/RTC
Discovery Measures: Ocular Inspection No enumeration
Production of
Evidence
Damage None/Separate Suit Allows damages for malicious
Neglect
 IMPLICATIONS AND CONCERNS

Criminal complaints and affidavits must be thorough

and fully supported by evidence. ---- more capacity
building activities for community partners and law
enforcers may be required
We need to test the extent of application of the
precautionary principle. ---- reviewing and taking a
hard look on our existing environmental cases
We need to determine READINESS requirements for
our communities and NGO partners.
 SOME CHALLENGES

Need for Orientation and Continuing

Information Dissemination on the
new rules for personnel of key
government agencies, local
government officials, community
leaders (indigenous peoples,
fisherfolk, farmers)
Different interpretation of the rules
Institutional challenges (availability
of judges in courts)
Labor, Time and Costs in the
Preparation of Evidence
Thank you