FIRST DIVISION

G.R. No. 131442             July 10, 2003

BANGUS FRY FISHERFOLK, DIWATA MAGBUHOS, ANGELITA BINAY, ELMA GARCIA, VIRGILIO PANGUIO, ARSENIO CASTILLO, ARIEL
PANGUIO, ANTONIO PANGUIO, ANTONIO BUNQUIN, GENEROSO BUNQUIN, CHARLIE DIMAYACYAC, RENATO PANGUIO, ATILANO
BUNQUIN, CARLOS CHAVEZ, JUAN DIMAYACYAC, FILEMON BUNQUIN, MARIO MAGBUHOS, MAURO MAGBUHOS, NORA
MAGBUHOS, JEOVILYN, GENALYN and JORVAN QUIMUEL, minors, represented by their parents FELICIANA and SABINO QUIMUEL,
MARICAR MAGBUHOS, minor, represented by her parents CARMELITA and ANTONIO MAGBUHOS, MARLO BINAY, minor,
represented by his parents EFRENITA and CHARLITO BINAY, and the BANGUS, BANGUS FRY and other MARINE LIFE OF MINOLO
COVE, petitioners,
vs.
THE HONORABLE ENRICO LANZANAS as Judge of the Regional Trial Court of Manila, Branch VII, THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES — Region IV, represented by its Regional Executive Director and its Regional Director
for Environment, THE NATIONAL POWER CORPORATION, ORIENTAL MINDORO ELECTRIC COOPERATIVE, PROVINCIAL
GOVERNMENT OF ORIENTAL MINDORO, herein represented by GOVERNOR RODOLFO VALENCIA, PUERTO GALERA MAYOR
GREGORIO DELGADO, VICE MAYOR ARISTEO ATIENZA, and MEMBERS OF THE SANGGUNIANG BAYAN OF PUERTO GALERA, JUAN
ASCAN, JR., RAFAEL ROMEY, CENON SALCEDO, JERRY DALISAY, SIMON BALITAAN, RENATO CATAQUIS, MARCELINO BANAAG,
DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN, MUNICIPAL ENGINEER RODEL RUBIO, and MUNICIPAL PLANNING and
DEVELOPMENT COORDINATOR WILHELMINA LINESES, respondents.

CARPIO, J.:

The Case

This is a petition for review1 of the Order2 dated 7 November 1997 of the Regional Trial Court of Manila, Branch 7 ("Manila RTC"),
dismissing petitioners' complaint for lack of cause of action and lack of jurisdiction.

The Facts

On 30 June 1997, Regional Executive Director Antonio G. Principe ("RED Principe") of Region IV, Department of Environment and
Natural Resources ("DENR"), issued an Environmental Clearance Certificate ("ECC") in favor of respondent National Power
Corporation ("NAPOCOR"). The ECC authorized NAPOCOR to construct a temporary mooring facility in Minolo Cove, Sitio Minolo,
Barangay San Isidro, Puerto Galera, Oriental Mindoro. The Sangguniang Bayan of Puerto Galera has declared Minolo Cove, a
mangrove area and breeding ground for bangus fry, an eco-tourist zone. 3

The mooring facility would serve as the temporary docking site of NAPOCOR's power barge, which, due to turbulent waters at its
former mooring site in Calapan, Oriental Mindoro, required relocation to a safer site like Minolo Cove. The 14.4 megawatts power
barge would provide the main source of power for the entire province of Oriental Mindoro pending the construction of a land-based
power plant in Calapan, Oriental Mindoro. The ECC for the mooring facility was valid for two years counted from its date of issuance
or until 30 June 1999.4

Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto Galera, 5 sought reconsideration of the ECC issuance. RED
Principe, however, denied petitioners' plea on 15 July 1997. On 21 July 1997, petitioners filed a complaint with the Regional Trial
Court of Manila, Branch 7, for the cancellation of the ECC and for the issuance of a writ of injunction to stop the construction of the
mooring facility. Impleaded as defendants were the following: (1) NAPOCOR, (2) RED Principe, (3) DENR Region IV Technical Director
for Environment Oscar Dominguez, (4) Oriental Mindoro Electric Cooperative ("ORMECO"), which is engaged in the distribution of
electricity in Oriental Mindoro, and (5) certain officials of Puerto Galera. 6 Petitioners subsequently amended their complaint to
include as additional defendants the elective officials of Oriental Mindoro represented by then Governor Rodolfo G. Valencia.
Petitioners further prayed for the demolition of mooring structures that respondents had already built.

On 28 July 1997, prior to the filing of the amended complaint, the trial court issued a 20-day temporary restraining order enjoining
the construction of the mooring facility. However, the trial court lifted the same on 6 August 1997 on NAPOCOR's manifestation that
the provincial government of Oriental Mindoro was the one undertaking the construction of the mooring facility. 7

On 28 August 1997, before filing their answers, respondents ORMECO and the provincial officials of Oriental Mindoro moved to
dismiss the complaint. These respondents claimed that petitioners failed to exhaust administrative remedies, rendering the
complaint without cause of action. They also asserted that the Manila RTC has no jurisdiction to enjoin the construction of the
mooring facility in Oriental Mindoro, which lies outside the Manila RTC's territorial jurisdiction.

Petitioners opposed the motion on the ground that there was no need to exhaust administrative remedies. They argued that the
issuance of the ECC was in patent violation of Presidential Decree No. 1605, 8 Sections 26 and 27 of Republic Act No. 7160, 9 and the
provisions of DENR Department Administrative Order No. 96-37 ("DAO 96-37") on the documentation of ECC applications.
Petitioners also claimed that the implementation of the ECC was in patent violation of its terms.

In its order of 7 November 1997, the trial court granted the motion and dismissed petitioners' complaint.

Hence, this petition.

The Ruling of the Trial Court

The trial court's order dismissing the complaint reads in part:

After careful evaluation and analysis, this Court finds the Motion to Dismiss tenable and meritorious.

Petitioners have clearly failed to exhaust all administrative remedies before taking this legal action in Court x x x.

It is x x x worth mentioning that the decision of the Regional Director may still be x x x elevated to the Office of the
Secretary of the DENR to fully comply with the process of exhaustion of administrative remedies. And well settled is the rule
in our jurisdiction that before bringing an action in or resorting to the Courts of Justice, all remedies of administrative
character affecting or determinative of the controversy at that level should first be exhausted by the aggrieved party
(Pestanas vs. Dyogi, L-25786, February 27, 1978). And petitioners' failure to exhaust administrative remedies renders his
[sic] petition dismissible (Chia vs. Acting Collector of Customs, 177 SCRA 755). And a dismissal on the ground of failure to
exhaust administrative remedies is tantamount to a dismissal based on lack of cause of action (Baguiro vs. Basa, Jr., 214
SCRA 437; Pineda vs. CFI of Davao, 111 Phil. 643; Sarabia vs. Secretary of Agriculture & Natural Resources, L-16002, May 23,
1961; Gone, et al. vs. District Engineer, et. al., L-22782, August 29, 1975; Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31,
1979) although it does not affect the jurisdiction of the court over the subject matter (Mun. of La Trinidad, et al. vs. CFI of
Baguio-Benguet, et al., L-33889, June 28, 1983).

Moreover, this Court finds the Opposition of the Petitioners highly untenable and bereft of merits that the controverted act
in question is patently illegal and there was an immediate need for judicial intervention.

The ECC in question was issued by the Regional Office of the DENR which has jurisdiction and authority over the same . . ..
And corollary to this, the issue as to whether or not the Minolo Cove is within the enclosed coves and waters embraced by
Puerto Galera bay and protected by Medio island is a clear question of fact which the DENR may appropriately resolve
before resorting to [the] Court[s].

This Court is likewise aware and cognizant of its territorial jurisdiction in the enforcement of Writ of Injunction. That truly,
[a] writ of injunction can only be enforced within [the] territorial jurisdiction of this Court but not for acts which are being
or about to be committed outside its territorial jurisdiction. Thus, in Philippine National Bank vs. Pineda, 197 SCRA 1, the
Honorable Supreme Court ruled: "Regional Trial Courts can only enforce their writs of injunction within their respective
designated territories. Furthermore, we find the issuance of the preliminary injunction directed against the Provincial
Sheriff of Negros Occidental a jurisdictional paux [sic] pas (from Black Dictionary means jurisdictional falsity) as the Courts of
First Instance now Regional Trial Court[s], can only enforce their writs of injunction within their respective designated
territories.

And finally, this Court is not unmindful of the relevant and square application in the case at bar of Presidential Decree No.
1818, Executive Order No. 380 dated November 27, 1989, and Circular No. 2-91 of the Supreme Court that the National
Power Corporation (NPC) is a public utility, created under special legislation, engaged in the generation and distribution of
electric power and energy. The mooring site of NPC in Puerto Galera, Oriental Mindoro is one of its infrastructure projects
falling within the mantle of Executive Order No. 380, November 27, 1989 x x x.
 And as held by the Supreme Court in the case of National Power Corporation vs. Honorable Abraham P. Vera, et al., 170
SCRA 721, courts are without jurisdiction to issue injunctive writs against [the] National Power Corporation. The latter
enjoys the protective mantle of P.D. 1818, (Circular No. 2-91).

xxx             xxx             xxx

Injunction in this case is not a mere ancillary [sic] writ but the main action itself together with the Annulment of the
Environmental Clearance Certificate (ECC). Even assuming arguendo that the court [can] annul the ECC how can the latter
enforce the same against the Provincial Government of Oriental Mindoro which was impleaded by the petitioners as a
necessary party together with the Oriental Mindoro Electric Cooperative and the government officials of Puerto Galera,
Oriental Mindoro, whose acts and functions are being performed outside the territorial jurisdiction of this court? x x x
Indisputably, the injunction and annulment of ECC as prayed for in the petition are inseparable x x x.

The conclusion, therefore, is inescapable that petitioners have failed to exhaust all the available administrative remedies
and this Court has no jurisdiction to issue the injunctive writ prayed for in the Amended [Complaint]. 10

The Issue

The issue is whether the trial court erred in dismissing petitioners' complaint for lack of cause action and lack of jurisdiction.

The Ruling of the Court

The petition has no merit.

Jurisdiction of the Manila RTC over the Case

Jurisdiction over the subject matter of a case is conferred by law. Such jurisdiction is determined by the allegations in the complaint,
irrespective of whether the plaintiff is entitled to all or some of the reliefs sought. 11

A perusal of the allegations in the complaint shows that petitioners' principal cause of action is the alleged illegality of the issuance
of the ECC. The violation of laws on environmental protection and on local government participation in the implementation of
environmentally critical projects is an issue that involves the validity of NAPOCOR's ECC. If the ECC is void, then as a necessary
consequence, NAPOCOR or the provincial government of Oriental Mindoro could not construct the mooring facility. The subsidiary
issue of non-compliance with pertinent local ordinances in the construction of the mooring facility becomes immaterial for purposes
of granting petitioners' main prayer, which is the annulment of the ECC. Thus, if the court has jurisdiction to determine the validity of
the issuance of the ECC, then it has jurisdiction to hear and decide petitioners' complaint.

Petitioners' complaint is one that is not capable of pecuniary estimation. It falls within the exclusive and original jurisdiction of the
Regional Trial Courts under Section 19(1) of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691. The question of
whether petitioners should file their complaint in the Regional Trial Court of Manila or Oriental Mindoro then becomes a matter of
venue, to be determined by the residence of the parties. 12

Petitioners' main prayer is the annulment of the ECC. The principal respondent, DENR Region IV, has its main office at the L & S
Building, Roxas Boulevard, Manila. Regional Executive Director Principe of the DENR Region IV, who issued the ECC, holds office
there. Plainly, the principal respondent resides in Manila, which is within the territorial jurisdiction of the Manila RTC. Thus,
petitioners filed their complaint in the proper venue.

On the other hand, the jurisdiction of Regional Trial Courts to issue injunctive writs is limited to acts committed or about to be
committed within their judicial region.13 Moreover, Presidential Decree No. 1818 ("PD No. 1818") prohibited 14 courts from issuing
injunctive writs against government infrastructure projects like the mooring facility in the present case. Republic Act No. 8975 ("RA
No. 8975"), which took effect on 26 November 2000, superseded PD No. 1818 and delineates more clearly the coverage of the
prohibition, reserves the power to issue such writs exclusively with this Court, and provides penalties for its violation. 15 Obviously,
neither the Manila RTC nor the Oriental Mindoro RTC can issue an injunctive writ to stop the construction of the mooring facility.
Only this Court can do so under PD No. 1818 and later under RA No. 8975. Thus, the question of whether the Manila RTC has
jurisdiction over the complaint considering that its injunctive writ is not enforceable in Oriental Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC, although it could not issue an injunctive
writ against the DENR or NAPOCOR. However, since the construction of the mooring facility could not proceed without a valid ECC,
the validity of the ECC remains the determinative issue in resolving petitioners' complaint.

Exhaustion of Administrative Remedies

The settled rule is before a party may seek the intervention of the courts, he should first avail of all the means afforded by
administrative processes. Hence, if a remedy within the administrative machinery is still available, with a procedure prescribed
pursuant to law for an administrative officer to decide the controversy, a party should first exhaust such remedy before resorting to
the courts. The premature invocation of a court's intervention renders the complaint without cause of action and dismissible on such
ground.16

RED Principe of the DENR Region IV Office issued the ECC based on (1) Presidential Decree No. 1586 ("PD No. 1586") and its
implementing rules establishing the Environmental Impact Statement System, (2) DAO 96-37 17 and (3) the Procedural Manual of DAO
96-37. Section 418 of PD No. 1586 requires a proponent of an environmentally critical project, or a project located within an
environmentally critical area as declared by the President, to secure an ECC prior to the project's operation. 19 NAPOCOR thus
secured the ECC because the mooring facility in Minolo Cove, while not an environmentally critical project, is located within an
environmentally critical area under Presidential Proclamation No. 2146, issued on 14 December 1981. 20

The rules on administrative appeals from rulings of the DENR Regional Directors on the implementation of PD No. 1586 are found in
Article VI of DAO 96-37, which provides:

SECTION 1.0. Appeal to the Office of the Secretary. — Any party aggrieved by the final decision of the RED may, within 15
days from receipt of such decision, file an appeal with the Office of the Secretary. The decision of the Secretary shall be
immediately executory.

SECTION 2.0. Grounds for Appeal. — The grounds for appeal shall be limited to grave abuse of discretion and serious errors
in the findings of fact which would cause grave or irreparable injury to the aggrieved party. Frivolous appeals shall not be
countenanced.

SECTION 3.0. Who May Appeal. — The proponent or any stakeholder, including but not limited to, the LGUs concerned and
affected communities, may file an appeal.

The DENR Procedural Manual for DAO 96-37 explains these provisions thus:

Final decisions of the RED may be appealed. These decisions include those relating to the issuance or non-issuance of an
ECC, and the imposition of fines and penalties. By inference, the decision of the Secretary on the issuance or non-issuance
of the ECC may also be appealed based on this provision. Resort to courts prior to availing of this remedy would make the
appellant's action dismissible on the ground of non-exhaustion of administrative remedies.

The right to appeal must be exercised within 15 days from receipt by the aggrieved party of such decision. Failure to file
such appeal within the requisite period will result in the finality of the RED's or Secretary's decision(s), which can no longer
be disturbed.

An appeal shall not stay the effectivity of the RED's decision, unless the Secretary directs otherwise.

The right to appeal does not prevent the aggrieved party from first resorting to the filing of a motion for reconsideration
with the RED, to give the RED an opportunity to re-evaluate his decision. (Emphasis added)

Instead of following the foregoing procedure, petitioners bypassed the DENR Secretary and immediately filed their complaint with
the Manila RTC, depriving the DENR Secretary the opportunity to review the decision of his subordinate, RED Principe. Under the
Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners' omission renders their complaint dismissible for lack of
cause of action.21 Consequently, the Manila RTC did not err in dismissing petitioners' complaint for lack of cause of action.

On the Alleged Patent Illegality of the ECC

Petitioners nevertheless contend that they are exempt from filing an appeal with the DENR Secretary because the issuance of the
ECC was in patent violation of existing laws and regulations. These are (1) Section 1 of Presidential Decree No. 1605, as amended, (2)
Sections 26 and 27 of Republic Act No. 7160 (Local Government Code of 1991), and (3) the provisions of DAO 96-37 on the
documentary requirements for the zoning permit and social acceptability of the mooring facility.

Petitioners' contention is without merit. While the patent illegality of an act exempts a party from complying with the rule on
exhaustion Of administrative remedies,22 this does not apply in the present case.

Presidential Decree No. 1605

Presidential Decree No. 1605 ("PD No. 1605"), 23 as amended by Presidential Decrees Nos. 1605-A and 1805, declares as ecologically
threatened zone "the coves and waters embraced by Puerto Galera Bay as protected by Medio Island." This decree provides in part:

Section 1. Any provision of law to the contrary notwithstanding, the construction of marinas, hotels, restaurants, other
commercial structures; commercial or semi-commercial wharfs [sic]; commercial docking within the enclosed coves of
Puerto Galera; the destruction of its mangrove stands; the devastation of its corals and coastline by large barges,
motorboats, tugboat propellers, and any form of destruction by other human activities are hereby prohibited.

Section 2. x x x

No permit for the construction of any wharf, marina, hotel, restaurants and other commercial structures in Puerto Galera
shall be issued without prior approval of the Office of the President upon the recommendation of the Philippine Tourism
Authority. (Emphasis supplied)

NAPOCOR claims that since Minolo Cove lies outside of "Puerto Galera Bay as protected by Medio Island", 24 PD No. 1605 does not
apply to this case. However, petitioners assert that Minolo Cove is one of the "enclosed coves of Puerto Galera" 25 and thus protected
under PD No. 1605. This is a question of fact that the DENR Secretary should have first resolved. In any event, there is no dispute
that NAPOCOR will use the mooring facility for its power barge that will supply 14.4 megawatts of electricity to the entire province of
Oriental Mindoro, including Puerto Galera. The mooring facility is obviously a government-owned public infrastructure intended to
serve a basic need of the people of Oriental Mindoro. The mooring facility is not a "commercial structure; commercial or semi-
commercial wharf or commercial docking" as contemplated in Section 1 of PD No. 1605. Therefore, the issuance of the ECC does not
violate PD No. 1605 which applies only to commercial structures like wharves, marinas, hotels and restaurants.

Sections 26 and 27 of RA No. 7160

Congress introduced Sections 26 and 27 in the Local Government Code to emphasize the legislative concern "for the maintenance of
a sound ecology and clean environment." 26 These provisions require every national government agency or government-owned and
controlled corporation to hold prior consultations with the local government unit concerned and to secure the prior approval of
its sanggunian before implementing "any project or program that may cause pollution, climatic change, depletion of non-renewable
resources, loss of cropland, rangeland, or forest cover and extinction of animal or plant species." Sections 26 and 27 respectively
provide:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. — It shall be the duty of every
national agency or government-owned or controlled corporation authorized 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, non-governmental 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 Section . . . 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.

In Lina, Jr. v. Paño,27 the Court interpreted these provisions in this manner:

 Section 27 of the Code should be read in conjunction with Section 26 thereof x x x.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose
effects are among those enumerated in Sections 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, rangeland, or
forest cover; (5) may eradicate certain animal or plant species; 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.

Again, Sections 26 and 27 do not apply to this case because as petitioners admit, 28 the mooring facility itself is not environmentally
critical and hence does not belong to any of the six types of projects mentioned in the law. There is no statutory requirement for the
concerned sanggunian to approve the construction of the mooring facility. It is another matter if the operation of the power barge is
at issue. As an environmentally critical project that causes pollution, the operation of the power barge needs the prior approval of
the concerned sanggunian. However, what is before this Court is only the construction of the mooring facility, not the operation of
the power barge. Thus, the issuance of the ECC does not violate Sections 26 and 27 of RA No. 7160.

Documentary Requirements for ECC Applications

Under DAO 96-37, an ECC applicant for a project located within an environmentally critical area is required to submit an Initial
Environment Examination, which must contain a brief description of the environmental setting and a documentation of the
consultative process undertaken, when appropriate. 29 As part of the description of the environmental setting, the ECC applicant
must submit a certificate of locational clearance or zoning certificate.

Petitioners further contend that NAPOCOR, in applying for the ECC, did not submit to the DENR Region IV Office the documents
proving the holding of consultations and the issuance of a locational clearance or zoning certificate. Petitioners assert that this
omission renders the issuance of the ECC patently illegal.

The contention is also without merit. While such documents are part of the submissions required from a project proponent, their
mere absence does not render the issuance of the ECC patently illegal. To justify non-exhaustion of administrative remedies due to
the patent illegality of the ECC, the public officer must have issued the ECC "[without any] semblance of compliance, or even an
attempt to comply, with the pertinent laws; when manifestly, the officer has acted without jurisdiction or has exceeded his
jurisdiction, or has committed a grave abuse of discretion; or when his act is clearly and obviously devoid of any color of authority." 30

RED Principe, as chief of DENR Region IV, is the officer duly authorized under DAO 96-37 31 to issue ECCs for projects located within
environmentally critical areas. RED Principe issued the ECC on the recommendation of Amelia Supetran, the Director of the
Environmental Management Bureau. Thus, RED Principe acted with full authority pursuant to DENR regulations. Moreover, the legal
presumption is that he acted with the requisite authority. 32 This clothes RED Principe's acts with presumptive validity and negates
any claim that his actions are patently illegal or that he gravely abused his discretion. While petitioners may present proof to the
contrary, they must do so before the proper administrative forum before resorting to judicial remedies.

On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in immediately seeking judicial recourse because NAPOCOR is guilty of violating the
conditions of the ECC, which requires it to secure a separate ECC for the operation of the power barge. The ECC also mandates
NAPOCOR to secure the usual local government permits, like zoning and building permits, from the municipal government of Puerto
Galera.

The contention is similarly without merit. The fact that NAPOCOR's ECC is subject to cancellation for non-compliance with its
conditions does not justify petitioners' conduct in ignoring the procedure prescribed in DAO 96-37 on appeals from the decision of
the DENR Executive Director. Petitioners vigorously insist that NAPOCOR should comply with the requirements of consultation and
locational clearance prescribed in DAO 96-37. Ironically, petitioners themselves refuse to abide with the procedure for filing
complaints and appealing decisions laid down in DAO 96-37.

DAO 96-37 provides for a separate administrative proceeding to address complaints for the cancellation of an ECC. Under Article IX
of DAO 96-37, complaints to nullify an ECC must undergo an administrative investigation, after which the hearing officer will submit
his report to the EMB Director or the Regional Executive Director, who will then render his decision. The aggrieved party may file an
appeal to the DENR Secretary, who has authority to issue cease and desist orders. Article IX also classifies the types of violations
covered under DAO 96-37, including projects operating without an ECC or violating the conditions of the ECC. This is the applicable
procedure to address petitioners' complaint on NAPOCOR's alleged violations and not the filing of the instant case in court.

A Final Word

The Court commends petitioners for their courageous efforts to safeguard and maintain the ecological balance of Minolo Cove. This
Court recognizes the utmost importance of protecting the environment. 33 Indeed, we have called for the vigorous prosecution of
violators of environmental laws.34 Legal actions to achieve this end, however, must be done in accordance with established rules of
procedure that were intended, in the first place, to achieve orderly and efficient administration of justice.

WHEREFORE, we DENY the petition for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 196870               June 26, 2012

BORACAY FOUNDATION, INC., Petitioner,

vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share common goals in pursuit of certain
primordial State policies and principles that are enshrined in the Constitution and pertinent laws, such as the protection of the
environment, the empowerment of the local government units, the promotion of tourism, and the encouragement of the
participation of the private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the petitioner and
respondents in achieving these shared goals within the context of our Constitution, laws and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus under A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary purpose is "to foster
a united, concerted and environment-conscious development of Boracay Island, thereby preserving and maintaining its culture,
natural beauty and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime tourist destination in
Asia and the whole world."1 It counts among its members at least sixty (60) owners and representatives of resorts, hotels,
restaurants, and similar institutions; at least five community organizations; and several environmentally-conscious residents and
advocates.2

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created pursuant to Republic Act
No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority (PEA), is a government
entity created by Presidential Decree No. 1084,3 which states that one of the purposes for which respondent PRA was created was to
reclaim land, including foreshore and submerged areas. PEA eventually became the lead agency primarily responsible for all
reclamation projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines
issued Executive Order No. 543, delegating the power "to approve reclamation projects to PRA through its governing Board, subject
to compliance with existing laws and rules and further subject to the condition that reclamation contracts to be executed with any
person or entity (must) go through public bidding."4

Respondent Department of Environment and Natural Resources – Environmental Management Bureau (DENR-EMB), Regional Office
VI (respondent DENR-EMB RVI), is the government agency in the Western Visayas Region authorized to issue environmental
compliance certificates regarding projects that require the environment’s protection and management in the region. 5

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one of the country’s most
popular tourist destinations, was declared a tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801. 6 The
island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan. 7

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique ecosystem dynamics of
the area. The island itself is known to come from the uplifted remnants of an ancient reef platform. Its beaches, the sandy land strip
between the water and the area currently occupied by numerous establishments, is the primary draw for domestic and international
tourists for its color, texture and other unique characteristics. Needless to state, it is the premier domestic and international tourist
destination in the Philippines.8

More than a decade ago, respondent Province built the Caticlan 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 end for
tourists in Boracay. Respondent Province operates both ports "to provide structural facilities suited for locals, tourists and guests
and to provide safety and security measures." 9

In 2005, Boracay 2010 Summit was held and participated in by representatives from national government agencies, local
government units (LGUs), and the private sector. Petitioner was one of the organizers and participants thereto. The Summit aimed
"to re-establish a common vision of all stakeholders to ensure the conservation, restoration, and preservation of Boracay Island" and
"to develop an action plan that [would allow] all sectors to work in concert among and with each other for the long term benefit and
sustainability of the island and the community." 10 The Summit yielded a Terminal Report11 stating that the participants had shared
their dream of having world-class land, water and air infrastructure, as well as given their observations that government support was
lacking, infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The Report showed that
there was a need to expand the port facilities at Caticlan due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to the island. 12

Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and 779,666 in 2010, and this
was expected to reach a record of 1 million tourist arrivals in the years to come. Thus, respondent Province conceptualized the
expansion of the port facilities at Barangay Caticlan. 13

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008 14 on April 25, 2008 stating that it had
learned that respondent Province had filed an application with the DENR for a foreshore lease of areas along the shorelines of
Barangay Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore lease practically covered
almost all the coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once granted, and depriving its
constituents of their statutory right of preference in the development and utilization of the natural resources within its jurisdiction.
The resolution further stated that respondent Province did not conduct any consultations with the Sangguniang Barangay of Caticlan
regarding the proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.15

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-369, 16 formally
authorizing Governor Marquez to enter into negotiations towards the possibility of effecting self-liquidating and income-producing
development and livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or other obligations as
provided under Section 299 of the Local Government Code, with the following priority projects: (a) renovation/rehabilitation of the
Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for commercial
purposes.17 This step was taken as respondent Province’s existing jetty port and passenger terminal was funded through bond
flotation, which was successfully redeemed and paid ahead of the target date. This was allegedly cited as one of the LGU’s Best
Practices wherein respondent Province was given the appropriate commendation. 18

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009 Annual Investment
Plan,19 envisioned as its project site the area adjacent to the existing jetty port, and identified additional areas along the coastline of
Barangay Caticlan as the site for future project expansion. 20

Governor Marquez sent a letter to respondent PRA on March 12, 2009 21 expressing the interest of respondent Province to reclaim
about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant that won in the
bidding process held a month before, to conduct the necessary feasibility study of the proposed project for the
Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan
Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan. 22

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No. 2009–110, 23 which
authorized Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with
respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the land reclamation of
2.64 hectares by way of beach enhancement and recovery of the old Caticlan coastline for the rehabilitation and expansion of the
existing jetty port, and for its future plans – the construction of commercial building and wellness center. The financial component of
the said study was Two Hundred Sixty Million Pesos (₱260,000,000.00). Its suggested financing scheme was bond flotation. 24

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended foreshore lease
application, through Resolution No. 044,25 approved on July 22, 2009, manifesting therein that respondent Province’s foreshore lease
application was for business enterprise purposes for its benefit, at the expense of the local government of Malay, which by statutory
provisions was the rightful entity "to develop, utilize and reap benefits from the natural resources found within its jurisdiction." 26

In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing Caticlan Jetty Port and
Passenger Terminal through beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program (EPRMP) 28 to DENR-EMB
RVI, which he had attached to his letter29 dated September 19, 2009, as an initial step for securing an Environmental Compliance
Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby assures your good office that it
will give preferential attention to and shall comply with whatever comments that you may have on this EPRMP. 30 (Emphasis added.)

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 Building, and the reclamation of a portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance
authorized Governor Marquez to negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super Marina
Bonds in the amount not exceeding ₱260,000,000.00.31

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-015 32 on October 1,
2009, amending Provincial Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through Governor
Marquez to fund the Marina Project and appropriate the entire proceeds of said bonds for the project, and further authorizing
Governor Marquez to negotiate, sign and execute contracts or agreements pertinent to the transaction. 33

Within the same month of October 2009, respondent Province deliberated on the possible expansion from its original proposed
reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of its resources and as a response to the
findings of the Preliminary Geohazard Assessment study which showed that the recession and retreat of the shoreline caused by
coastal erosion and scouring should be the first major concern in the project site and nearby coastal area. The study likewise
indicated the vulnerability of the coastal zone within the proposed project site and the nearby coastal area due to the effects of sea
level rise and climate change which will greatly affect the social, economic, and environmental situation of Caticlan and nearby
Malay coastal communities.34

In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our request to PRA for
approval of the reclamation of the [proposed Beach Zone Restoration and Protection Marine Development in Barangays Caticlan and
Manoc-Manoc] and as a result of our discussion during the [meeting with the respondent PRA on October 12, 2009], may we
respectfully submit a revised Reclamation Project Description embodying certain revisions/changes in the size and location of the
areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local Government Unit
Guarantee Corporation (LGUGC) has been finally approved last October 14, 2009. This will pave the way for the implementation of
said project. Briefly, the Province has been recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet
its loan obligations. x x x.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such development project
with the end in view of protection and/or restoring certain segments of the shoreline in Barangays Caticlan (Caticlan side) and
Manoc-manoc (Boracay side) which, as reported by experts, has been experiencing tremendous coastal erosion.

For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and tourism-related
facilities and for other complementary uses.35 (Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-299 36 authorizing Governor Marquez to
enter into a Memorandum of Agreement (MOA) with respondent PRA in the implementation of the Beach Zone Restoration and
Protection Marina Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at
Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and conditions of the necessary
agreements for the implementation of the bond flotation of respondent Province to fund the renovation/rehabilitation of the
existing jetty port by way of enhancement and recovery of the Old Caticlan shoreline through reclamation of an area of 2.64
hectares in the amount of ₱260,000,000.00 on December 1, 2009. 37

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of Malay 38 on December
9, 2009.

Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized its General
Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent Province for the implementation of the reclamation
project.39

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the
Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port. 40

On May 17, 2010, respondent Province entered into a MOA 41 with respondent PRA. Under Article III, the Project was described
therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the reclamation and development
of approximately forty (40) hectares of foreshore and offshore areas of the Municipality of Malay x x x.

The land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable
uses.42 (Emphases supplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of what it calls "information-education
campaigns," which provided the venue for interaction and dialogue with the public, particularly the Barangay and Municipal officials
of the Municipality of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental
organizations (NGOs). The details of the campaign are summarized as follows 43 :

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan; 44

b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal; 45

c. July 31, 2010 at Barangay Caticlan Plaza; 46

d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay – Mayor John P. Yap; 47

e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council Executive
Committee;48 and

f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner. 49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on June 17, 2010,
respondent Province presented the Reclamation Project and only then detailed the actions that it had already undertaken,
particularly: the issuance of the Caticlan Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct
of an Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40)
hectares from 2.64 hectares.50

In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong opposition to
respondent Province’s project and denied its request for a favorable endorsement of the Marina Project. 51

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to request respondent
PRA "not to grant reclamation permit and notice to proceed to the Marina Project of the [respondent] Provincial Government of
Aklan located at Caticlan, Malay, Aklan." 52

In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation project, primarily for
the reason that, based on the opinion of Dr. Porfirio M. Aliño, an expert from the University of the Philippines Marine Science
Institute (UPMSI), which he rendered based on the documents submitted by respondent Province to obtain the ECC, a full EIA study
is required to assess the reclamation project’s likelihood of rendering critical and lasting effect on Boracay considering the proximity
in distance, geographical location, current and wind direction, and many other environmental considerations in the area. Petitioner
noted that said documents had failed to deal with coastal erosion concerns in Boracay. It also noted that respondent Province failed
to comply with certain mandatory provisions of the Local Government Code, particularly, those requiring the project proponent to
conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the reclamation project to
respondent Province, respondent PRA, respondent DENR-EMB, the National Economic Development Authority Region VI, the Malay
Municipality, and other concerned entities.54

Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request for a favorable endorsement, as well
as the strong opposition manifested both by Barangay Caticlan and petitioner as an NGO, respondent Province still continued with
the implementation of the Reclamation Project. 55

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010, of the Municipality of
Malay and manifested its support for the implementation of the aforesaid project through its Resolution No. 2010-022. 56

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130. Respondent PRA
wrote to respondent Province on October 19, 2010, informing the latter to proceed with the reclamation and development of phase
1 of site 1 of its proposed project. Respondent PRA attached to said letter its Evaluation Report dated October 18, 2010. 57

Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which authorized respondent Province to
proceed with phase 1 of the reclamation project, subject to compliance with the requirements of its Evaluation Report. The
reclamation project was described as:

"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in two (2) separate sites
both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-
Manoc, Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters
apart. x x x." 58 (Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034, 59 addressed the apprehensions of petitioner embodied in
its Resolution No. 001, s. 2010, and supported the implementation of the project. Said resolution stated that the apprehensions of
petitioner with regard to the economic, social and political negative impacts of the projects were mere perceptions and generalities
and were not anchored on definite scientific, social and political studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded
by the Department of Tourism (DOT) with the assistance of, among others, petitioner. The study was conducted in November 2010
by several marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was
intended to determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the coastal erosion
patterns in the southern coast of Boracay Island and along the coast of Caticlan. 60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of petitioner, respondent
Province issued a notice to the contractor on December 1, 2010 to commence with the construction of the project. 61

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food, Agriculture, and
Environmental Protection and the Committee on Tourism, Trade, Industry and Commerce, conducted a joint committee hearing
wherein the study undertaken by the MERF-UPMSI was discussed. 62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay,
representatives from the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the
subject project, consisting of 2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait traversing the
coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility that it would affect the Boracay coastline, which
includes the famous white-sand beach of the island.63

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-065 64 noting the report on the survey of
the channel between Caticlan and Boracay conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay
beaches, and stating that Dr. Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse
effect on the white-sand beach of Boracay.

During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April 16, 2011, it approved and
supported the subject project (covering 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011. 65

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study conducted by the UPMSI
confirms that the water flow across the Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe
that the 2.64-hectare project of respondent Province would not significantly affect the flow in the channel and would unlikely impact
the Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on
environmental grounds.66

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing
Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to
file their respective comments to the petition. 67

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the Provincial Engineering
Office and the concerned contractor to cease and desist from conducting any construction activities until further orders from this
Court.

The petition is premised on the following grounds:

I.

The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and regulations in the
acquisition of an ECC.

A. The reclamation project is co-located within environmentally critical areas requiring the performance of a full, or
programmatic, environmental impact assessment.

B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.

C. Respondent Province failed to conduct the required consultation procedures as required by the Local Government Code.

D. Respondent Province failed to perform a full environmental impact assessment as required by law and relevant
regulations.

II.

The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail ecological balance of the
area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single instead of co-located, as "non-
environmentally critical," and as a mere "rehabilitation" of the existing jetty port. Petitioner points out that the reclamation project
is on two sites (which are situated on the opposite sides of Tabon Strait, about 1,200 meters apart):

 36.82 hectares – Site 1, in Bgy. Caticlan

 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island 69

Phase 1, which was started in December 2010 without the necessary permits, 70 is located on the Caticlan side of a narrow strait
separating mainland Aklan from Boracay. In the implementation of the project, respondent Province obtained only an ECC to
conduct Phase 1, instead of an ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province abused and
exploited the Revised Procedural Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30) 71 relating to the
acquisition of an ECC by:

1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project) in ECA
(environmentally critical area) based on the type and size of the area," and

2. Failing to declare the reclamation project as a co-located project application which would have required the Province to
submit a Programmatic Environmental Impact Statement (PEIS) 72 or Programmatic Environmental [Performance] Report
Management Plan (PE[P]RMP).73 (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which merely requires an
Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave
abuse of discretion because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation
No. 2146, clearly indicate that projects in environmentally critical areas are to be immediately considered environmentally critical.
Petitioner complains that respondent Province applied for an ECC only for Phase 1; hence, unlawfully

evading the requirement that co-located projects 74 within Environmentally Critical Areas (ECAs) must submit a PEIS and/or a
PEPRMP.

Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP in an ECA, and as a
single project instead of a co-located one. The impact assessment allegedly performed gives a patently erroneous and wrongly-
premised appraisal of the possible environmental impact of the reclamation project. Petitioner contends that respondent Province’s
choice of classification was designed to avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to ensure that the
environment is protected from harmful developmental projects because it allegedly performed only a cursory and superficial review
of the documents submitted by the respondent Province for an ECC, failing to note that all the information and data used by
respondent Province in its application for the ECC were all dated and not current, as data was gathered in the late 1990s for the ECC
issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to
Boracay, which involves changes in the structure of the coastline that could contribute to the changes in the characteristics of the
sand in the beaches of both Caticlan and Boracay.

Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay side and notes that the
declared objective of the reclamation project is for the exploitation of Boracay’s tourist trade, since the project is intended to
enhance support services thereto. But, petitioner argues, the primary reason for Boracay’s popularity is its white-sand beaches
which will be negatively affected by the project.

Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable endorsement of the LGUs of
Barangay Caticlan and Malay Municipality pursuant to the consultation procedures as required by the Local Government
Code.75 Petitioner asserts that the reclamation project is in violation not only of laws on EIS but also of the Local Government Code as
respondent Province failed to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay
Chapter also expressed strong opposition against the project. 76

Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the project or program may cause
pollution, climactic change, depletion of non-renewable resources, etc. According to petitioner, respondent Province ignored the
LGUs’ opposition expressed as early as 2008. Not only that, respondent Province belatedly called for public "consultation meetings"
on June 17 and July 28, 2010, after an ECC had already been issued and the MOA between respondents PRA and Province had
already been executed. As the petitioner saw it, these were not consultations but mere "project presentations."

Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB, ignored the spirit and letter of
the Revised Procedural Manual, intended to implement the various regulations governing the Environmental Impact Assessments
(EIAs) to ensure that developmental projects are in line with sustainable development of natural resources. The project was
conceptualized without considering alternatives.

Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while it is true that as of now,
only the Caticlan side has been issued an ECC, the entire project involves the Boracay side, which should have been considered a co-
located project. Petitioner claims that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will
affect Boracay and Caticlan as they are separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC
and permit issued must be invalidated and cancelled.

Petitioner contends that a study shows that the flow of the water through a narrower channel due to the reclamation project will
likely divert sand transport off the southwest part of Boracay, whereas the characteristic coast of the Caticlan side of the strait
indicate stronger sediment transport.77 The white-sand beaches of Boracay and its surrounding marine environment depend upon
the natural flow of the adjacent waters.

Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area, petitioner submits that while the study conducted by the MERF-UPMSI only considers the impact of
the reclamation project on the land, it is undeniable that it will also adversely affect the already frail ecological balance of the area.
The effect of the project would have been properly assessed if the proper EIA had been performed prior to any implementation of
the project.

According to petitioner, respondent Province’s intended purposes do not prevail over its duty and obligation to protect the
environment. Petitioner believes that rehabilitation of the Jetty Port may be done through other means.

In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of 40 hectares is advantageous
to the Provincial Government considering that its filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also
the minimum fee as prescribed under Section 4.2 of Administrative Order No. 2007-2. 79

Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of cause of action due to
the failure of petitioner to fully exhaust the available administrative remedies even before seeking judicial relief. According to
respondent Province, the petition primarily assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject
project consisting of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent Province to submit
proper documentation as required for its issuance. Hence, the grounds relied upon by petitioner can be addressed within the
confines of administrative processes provided by law.

Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30), 80 the issuance of
an ECC81 is an official decision of DENR-EMB RVI on the application of a project proponent. 82 It cites Section 6 of DENR DAO 2003-30,
which provides for a remedy available to the party aggrieved by the final decision on the proponent’s ECC applications.

Respondent Province argues that the instant petition is anchored on a wrong premise that results to petitioner’s unfounded fears
and baseless apprehensions. It is respondent Province’s contention that its 2.64-hectare reclamation project is considered as a
"stand alone project," separate and independent from the approved area of 40 hectares. Thus, petitioner should have observed the
difference between the "future development plan" of respondent Province from its "actual project" being undertaken. 83

Respondent Province clearly does not dispute the fact that it revised its original application to respondent PRA from 2.64 hectares to
40 hectares. However, it claims that such revision is part of its future plan, and implementation thereof is "still subject to availability
of funds, independent scientific environmental study, separate application of ECC and notice to proceed to be issued by respondent
PRA."84

Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port expansion project is a bigger project
which is still at the conceptualization stage. Although this project was described in the Notice to Proceed issued by respondent PRA
to have two phases, 36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan
jetty port expansion project."85
Respondent Province says that the Accomplishment Report 86 of its Engineering Office would attest that the actual project consists of
2.64 hectares only, as originally planned and conceptualized, which was even reduced to 2.2 hectares due to some construction and
design modifications.

Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64 hectares only, based on
respondent PRA’s Evaluation Report87 dated October 18, 2010, which was in turn the basis of the issuance of the Notice to Proceed
dated October 19, 2010, because the project’s financial component is ₱260,000,000.00 only. Said Evaluation Report indicates that
the implementation of the other phases of the project including site 2, which consists of the other portions of the 40-hectare area
that includes a portion in Boracay, is still within the 10-year period and will depend largely on the availability of funds of respondent
Province.88

So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases in order to determine the
period of its implementation. Each phase was separate and independent because the source of funds was also separate. The
required documents and requirements were also specific for each phase. The entire approved area of 40 hectares could be
implemented within a period of 10 years but this would depend solely on the availability of funds. 89

As far as respondent Province understands it, additional reclamations not covered by the ECC, which only approved 2.64 hectares,
should undergo another EIA. If respondent Province intends to commence the construction on the other component of the 40
hectares, then it agrees that it is mandated to secure a new ECC. 90

Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was at present only
financially equipped and legally compliant to undertake 2.64 hectares of the project, and only as an expansion of its old jetty port. 91

Respondent Province claims that it has complied with all the necessary requirements for securing an ECC. On the issue that the
reclamation project is within an ECA requiring the performance of a full or programmatic EIA, respondent Province reiterates that
the idea of expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its
funding and authority. From the beginning, its intention was to rehabilitate and expand the existing jetty port terminal to
accommodate an increasing projected traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project
Grouping Matrix for Determination of EIA Report Type considered as Minor Reclamation Projects falling under Group II – Non ECP in
an ECA. Whether 2.64 or 40 hectares in area, the subject project falls within this classification.

Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation project at Caticlan, Malay,
Aklan, as co-located within an ECA.

Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-hectare area as it is
originally planned for the expansion site of the existing Caticlan jetty port. At present, it has no definite conceptual construction plan
of the said portion in Boracay and it has no financial allocation to initiate any project on the said Boracay portion.

Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged component that falls
within an ECA is in Boracay. Considering its geographical location, the two sites cannot be considered as a contiguous area for the
reason that it is separated by a body of water – a strait that traverses between the mainland Panay wherein Caticlan is located and
Boracay. Hence, it is erroneous to consider the two sites as a co-located project within an ECA. Being a "stand alone project" and an
expansion of the existing jetty port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure an
ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.

Respondent Province contends that even if, granting for the sake of argument, it had erroneously categorized its project as Non-ECP
in an ECA, this was not a final determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system, had the
final decision on this matter. Under DENR DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is
conducted, shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to deny said application. Its
Regional Director could either issue an ECC for the project or deny the application. He may also require a more comprehensive EIA
study. The Regional Director issued the ECC based on the EPRMP submitted by respondent Province and after the same went
through the EIA review process.

Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located project" is premature if not baseless as
the bigger reclamation project is still on the conceptualization stage. Both respondents PRA and Province are yet to complete studies
and feasibility studies to embark on another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked within the limits of the
ECC.92

With regard to petitioner’s allegation that respondent Province failed to get the favorable endorsement of the concerned LGUs in
violation of the Local Government Code, respondent Province contends that consultation vis-à-vis the favorable endorsement from
the concerned LGUs as contemplated under the Local Government Code are merely tools to seek advice and not a power clothed
upon the LGUs to unilaterally approve or disapprove any government projects. Furthermore, such endorsement is not necessary for
projects falling under Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and certifications as a pre-requisite
for the issuance of an ECC. Respondent Province claims to have conducted consultative activities with LGUs in connection with
Sections 26 and 27 of the Local Government Code. The vehement and staunch objections of both the Sangguniang Barangay of
Caticlan and the Sangguniang Bayan of Malay, according to respondent Province, were not rooted on its perceived impact upon the
people and the community in terms of environmental or ecological balance, but due to an alleged conflict with their "principal
position to develop, utilize and reap benefits from the natural resources found within its jurisdiction." 93 Respondent Province argues
that these concerns are not within the purview of the Local Government Code. Furthermore, the Preliminary Geohazard Assessment
Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental
issue they may raise.

Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code is to create an avenue for
parties, the proponent and the LGU concerned, to come up with a tool in harmonizing its views and concerns about the project. The
duty to consult does not automatically require adherence to the opinions during the consultation process. It is allegedly not within
the provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the project in the guise of
requiring the proponent of securing its favorable endorsement. In this case, petitioner is calling a halt to the project without
providing an alternative resolution to harmonize its position and that of respondent Province.

Respondent Province claims that the EPRMP94 would reveal that:

[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found along the vicinity. Thus,
fish life at the project site is quite scarce due to the absence of marine support systems like the sea grass beds and coral reefs.

x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the shallowest point, there was
no more coral patch and the substrate is sandy. It is of public knowledge that the said foreshore area is being utilized by the
residents ever since as berthing or anchorage site of their motorized banca. There will be no possibility of any coral development
therein because of its continuous utilization. Likewise, the activity of the strait that traverses between the main land Caticlan and
Boracay Island would also be a factor of the coral development. Corals [may] only be formed within the area if there is scientific
human intervention, which is absent up to the present.

In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to the environmental effects of
Respondent-LGU’s 2.64 hectares reclamation project. The alleged environmental impact of the subject project to the beaches of
Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the project would cause imminent, grave and
irreparable injury to the community. 95

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the TEPO may be dissolved if it
appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined, while the
applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party
or person enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists and passengers
serviced by the jetty port, brought about by the abrupt cessation of development works.

As regards financial dislocation, the arguments of respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had issued to its creditors as the financing scheme in
funding the present project is by way of credit financing through bond flotation.
 2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold to investors, which in turn would
be paid by the income that the project would realize or incur upon its completion.

3. While the project is under construction, respondent Province is appropriating a portion of its Internal Revenue Allotment
(IRA) budget from the 20% development fund to defray the interest and principal amortization due to the Guarantee Bank.

4. The respondent Province’s IRA, regular income, and/or such other revenues or funds, as may be permitted by law, are
being used as security for the payment of the said loan used for the project’s construction.

5. The inability of the subject project to earn revenues as projected upon completion will compel the Province to shoulder
the full amount of the obligation, starting from year 2012.

6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or funds as permitted by
law; if project is stopped, detriment of the public welfare and its constituents. 96

As to the second ground for the dissolution of the TEPO, respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially that reclaimed land
if not properly secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the project. The embankment that was deposited on the project has
no proper concrete wave protection that might be washed out in the event that a strong typhoon or big waves may occur
affecting the strait and the properties along the project site. It is already the rainy season and there is a big possibility of
typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that had been washed out might be transferred to the
adjoining properties which could affect its natural environmental state.

4. It might result to the total alteration of the physical landscape of the area attributing to environmental disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total erosion of the embankment that has
been dumped on the accomplished area.97

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury or damage from the
ongoing project. The petitioner’s perceived fear of environmental destruction brought about by its erroneous appreciation of
available data is unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of Procedure on
Environmental Cases, the TEPO may be dissolved.

Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order No. 543 delegated the power
"to approve reclamation projects to respondent PRA through its governing Board, subject to compliance with existing laws and rules
and further subject to the condition that reclamation contracts to be executed with any person or entity (must) go through public
bidding."

Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval process and procedures for various
reclamation projects to be undertaken. Respondent PRA prepared an Evaluation Report on November 5, 2009 99 regarding Aklan’s
proposal to increase its project to 40 hectares.

Respondent PRA contends that it was only after respondent Province had complied with the requirements under the law that
respondent PRA, through its Board of Directors, approved the proposed project under its Board Resolution No. 4094. 100 In the same
Resolution, respondent PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial government to
implement the reclamation project under certain conditions.

The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-hectare reclamation project proposal
in willful disregard of alleged "numerous irregularities" as claimed by petitioner. 101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and its rules. Indeed, it issued
the notice to proceed only after Aklan had complied with all the requirements imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project remains a plan insofar as respondent PRA is concerned. What has been
approved for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation project. Respondent PRA reiterates that it
approved this reclamation project after extensively reviewing the legal, technical, financial, environmental, and operational aspects
of the proposed reclamation.102

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no reclamation work could
be started until respondent PRA has approved the detailed engineering plans/methodology, design and specifications of the
reclamation. Part of the required submissions to respondent PRA includes the drainage design as approved by the Public Works
Department and the ECC as issued by the DENR, all of which the Aklan government must submit to respondent PRA before starting
any reclamation works.103 Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit,
apart from the ECC, the following requirements for respondent PRA’s review and approval, as basis for the issuance of a Notice to
Proceed (NTP) for Reclamation Works:

(a) Land-form plan with technical description of the metes and bounds of the same land-form;

(b) Final master development and land use plan for the project;

(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation works, reclamation
plans and methodology, plans for the sources of fill materials;

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effective and efficient
drainage system as may be required based on the results of the studies;

(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation components, e.g.
reclamation containment structures and soil consolidation;

(f) Organizational chart of the construction arm, manning table, equipment schedule for the project; and,

(g) Project timetable (PERT/CPM) for the entire project construction period. 104

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly comply with all
conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and international commitments of the Republic of the
Philippines to ensure environmental protection."105

In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate action petitioner’s Resolution 001,
series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA 107 on
September 16, 2010 informing it that respondent Province had already met with the different officials of Malay, furnishing
respondent PRA with the copies of the minutes of such meetings/presentations. Governor Marquez also assured respondent PRA
that it had complied with the consultation requirements as far as Malay was concerned.

Respondent PRA claims that in evaluating respondent Province’s project and in issuing the necessary NTP for Phase 1 of Site 1 (2.64
hectares) of the Caticlan Jetty Port expansion and modernization, respondent PRA gave considerable weight to all pertinent
issuances, especially the ECC issued by DENR-EMB RVI. 108 Respondent PRA stresses that its earlier approval of the 40-hectare
reclamation project under its Resolution No. 4094, series of 2010, still requires a second level of compliance requirements from the
proponent. Respondent Province could not possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its
favor.

Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site 1, it required the submission
of the following pre-construction documents:

(a) Land-Form Plan (with technical description);

(b) Site Development Plan/Land Use Plan including,

 (i) sewer and drainage systems and

(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,

(f) The ECC.109

Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to respondent Province the NTP,
limited to the 2.64-hectare reclamation project. Respondent PRA even emphasized in its evaluation report that should respondent
Province pursue the other phases of its project, it would still require the submission of an ECC for each succeeding phases before the
start of any reclamation works.110

Respondent PRA, being the national government’s arm in regulating and coordinating all reclamation projects in the Philippines – a
mandate conferred by law – manifests that it is incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate,
based on its technical competencies, all reclamation projects submitted to it for approval. Once the reclamation project’s
requirements set forth by law and related rules have been complied with, respondent PRA is mandated to approve the same.
Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the reclamation permit
it issued to Aklan is ‘founded upon numerous irregularities;’ as recklessly and baselessly imputed by BFI." 111

In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC certifies that the project had
undergone the proper EIA process by assessing, among others, the direct and indirect impact of the project on the biophysical and
human environment and ensuring that these impacts are addressed by appropriate environmental protection and enhancement
measures, pursuant to Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules
and regulations.113

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as tourist zone and
marine reserve under Proclamation No. 1801, has no relevance to the expansion project of Caticlan Jetty Port and Passenger
Terminal for the very reason that the project is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which
is not a part of mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation No. 2146
(1981), being within the category of a water body. This was why respondent Province had faithfully secured an ECC pursuant to the
Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as contained in the EPRMP on March 19,
2010, which were the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty
Port and Passenger Terminal, covering 2.64 hectares. 114

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been considered by the DENR-
Provincial Environment and Natural Resources Office (PENRO), Aklan in the issuance of the Order 115 dated January 26, 2010,
disregarding the claim of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the application of
the Province of Aklan; and another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No.
060412-43A and FLA No. 060412-43B, of the Province of Aklan. 116

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the issuance of an ECC were merely
for the expansion and modernization of the old jetty port in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare
reclamation project in Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009 addressed
to DENR-EMB RVI Regional Executive Director, would show that the reclamation project will cover approximately 2.6 hectares. 117 This
application for ECC was not officially accepted due to lack of requirements or documents.

Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI looked at the documents
submitted by respondent Province and saw that the subject area covered by the ECC application and subsequently granted with ECC-
R6-1003-096-7100 consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the excess area. 118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation project under "Non ECP in ECA,"
this does not fall within the definition of a co-located project because the subject project is merely an expansion of the old Caticlan
Jetty Port, which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or
PEPRMP, is required.119

Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the EPRMP:

a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at Caticlan and Manok-
manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly
in Caticlan site, and

b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB), Central Office and Engr.
Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard Assessment
for the Enhancement of the Existing Caticlan Jetty Port Terminal through Beach Zone Restoration and Protective Marina
Development in Malay, Aklan."

Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a best professional judgment
to issue an amended ECC for the Aklan Marina Project covering 2.64 hectares. 120 Furthermore, to confirm that the 2.64-hectare
reclamation has no significant negative impact with the surrounding environment particularly in Boracay, a more recent study was
conducted, and respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in the [MERF- UPMSI]
study utilized the [40-hectare] reclamation and [200-meter] width seaward using the tidal and wave modelling." 121 The study showed
that the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait between Barangay Caticlan and Boracay.

Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are
required pursuant to the DENR Memorandum Circular No. 2007-08, entitled "Simplifying the Requirements of ECC or CNC
Applications;" that the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR DAO 2003-30 which
resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs to consider in
its decision whether or not to issue a local permit. 122

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the DENR Secretary of the
opportunity to review and/or reverse the decision of his subordinate office, EMB RVI pursuant to the Revised Procedural Manual for
DENR DAO 2003-30. There is no "extreme urgency that necessitates the granting of Mandamus or issuance of TEPO that put to
balance between the life and death of the petitioner or present grave or irreparable damage to environment." 123

After receiving the above Comments from all the respondents, the Court set the case for oral arguments on September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion 124 praying for the dismissal of the petition,
as the province was no longer pursuing the implementation of the succeeding phases of the project due to its inability to comply
with Article IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become moot. Respondent Province
alleges that the petition is "premised on a serious misappreciation of the real extent of the contested reclamation project" as
certainly the ECC covered only a total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA
spoke of 40 hectares, respondent Province’s submission of documents to respondent PRA pertaining to said area was but the first of
a two-step process of approval. Respondent Province claims that its failure to comply with the documentary requirements of
respondent PRA within the period provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue the
remainder of the project.125 Respondent Province further manifested:

Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that the Province of Aklan is no
longer "pursuing the implementation of the succeeding phases of the project with a total area of 37.4 hectares for our inability to
comply with Article IV B.2 (3) of the MOA; hence, the existing MOA will cover only the project area of 2.64 hectares."

In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor Marquez that the [respondent]
PRA Board of Directors has given [respondent] PRA the authority to confirm the position of the Province of Aklan that the "Aklan
Beach Zone Restoration and Protection Marine Development Project will now be confined to the reclamation and development of
the 2.64 hectares, more or less.

It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as evidenced by the NTP issued by
respondent PRA. The recent exchange of correspondence between respondents Province of Aklan and [respondent] PRA further
confirms the intent of the parties all along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40
hectares as feared. This completely changes the extent of the Project and, consequently, moots the issues and fears expressed by
the petitioner.128 (Emphasis supplied.)

Based on the above contentions, respondent Province prays that the petition be dismissed as no further justiciable controversy
exists since the feared adverse effect to Boracay Island’s ecology had become academic all together. 129

The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty (20) days thereafter to file their
respective memoranda.

Respondent Province filed another Manifestation and Motion, 130 which the Court received on April 2, 2012 stating that:

1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC was issued in its favor;

2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-2, which compliance
caused respondent PRA’s Board to approve the reclamation project; and

3. it had conducted a series of "consultative [presentations]" relative to the reclamation project before the LGU of Malay
Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.

Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on February 13, 2012
Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the
Aklan Provincial Government at Caticlan Coastline" 131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted
Resolution No. 020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial
Government of Aklan Located at Barangay Caticlan, Malay, Aklan." 132

Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and PRA that led to the
approval of the reclamation project by the said government agencies, as well as the recent enactments of the Barangay Council of
Caticlan and the Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had "categorically addressed
all the issues raised by the Petitioner in its Petition dated June 1, 2011." Respondent Province prays as follows:

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due proceedings, the following
be rendered:

1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.

2. The instant petition be dismissed for being moot and academic.

3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the premises. (Emphases in
the original.)

ISSUES

The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for having been rendered moot and academic

II. Whether or not the petition is premature because petitioner failed to exhaust administrative remedies before filing this
case

III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations based on the scope
and classification of the project

IV. Whether or not respondent Province complied with all the requirements under the pertinent laws and regulations

V. Whether or not there was proper, timely, and sufficient public consultation for the project
 DISCUSSION

On the issue of whether or not the Petition should be dismissed for having been rendered moot and academic

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged favorable endorsement of
the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the
issues raised by petitioner had already been addressed, and this petition should be dismissed for being moot and academic.

On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they are not sufficient to render the
petition moot and academic, as there are explicit conditions imposed that must be complied with by respondent Province. In
Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it is stated that "any vertical structures to be
constructed shall be subject for barangay endorsement." 133 Clearly, what the barangay endorsed was the reclamation only, and not
the entire project that includes the construction of a commercial building and wellness center, and other tourism-related facilities.
Petitioner’s objections, as may be recalled, pertain not only to the reclamation per se, but also to the building to be constructed and
the entire project’s perceived ill effects to the surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay 134 is even more specific. It reads in part:

WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for the Local Government of
Malay in terms of income and employment for its constituents, but the fact cannot be denied that the project will take its toll on the
environment especially on the nearby fragile island of Boracay and the fact also remains that the project will eventually displace the
local transportation operators/cooperatives;

WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where this matter was referred
conducted several consultations/committee hearings with concerned departments and the private sector specifically Boracay
Foundation, Inc. and they are one in its belief that this Local Government Unit has never been against development so long as
compliance with the law and proper procedures have been observed and that paramount consideration have been given to the
environment lest we disturb the balance of nature to the end that progress will be brought to naught;

WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no less than transparency and
faithful commitment from the Provincial Government of Aklan in the process of going through these improvements in the
Municipality because it once fell prey to infidelities in matters of governance;

WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this Honorable Council
necessitates a sincere commitment from the Provincial Government of Aklan to the end that:

1. To allocate an office space to LGU-Malay within the building in the reclaimed area;

2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the reclamation project;

3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not beyond;

4. That the local transportation operators/cooperatives will not be displaced; and

5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the environmental impact of the
reclamation project especially during Habagat and Amihan seasons and put in place as early as possible mitigating measures
on the effect of the project to the environment.

WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no choice but to revoke this
endorsement, hence faithful compliance of the commitment of the Provincial Government is highly appealed for[.] 135 (Emphases
added.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with on pain of
revocation of its endorsement of the project, including the need to conduct a comprehensive study on the environmental impact of
the reclamation project, which is the heart of the petition before us. Therefore, the contents of the two resolutions submitted by
respondent Province do not support its conclusion that the subsequent favorable endorsement of the LGUs had already addressed
all the issues raised and rendered the instant petition moot and academic.

On the issue of failure to exhaust administrative remedies

Respondents, in essence, argue that the present petition should be dismissed for petitioner’s failure to exhaust administrative
remedies and even to observe the hierarchy of courts. Furthermore, as the petition questions the issuance of the ECC and the NTP,
this involves factual and technical verification, which are more properly within the expertise of the concerned government agencies.

Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt of such decision, file an
appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and
aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.

The proponent or any stakeholder may file an appeal to the following:

Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

(Emphases supplied.)

Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound to observe the same and
may not be granted recourse to the regular courts for its failure to do so.

We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of administrative remedies in this
case. We are reminded of our ruling in Pagara v. Court of Appeals, 136 which summarized our earlier decisions on the procedural
requirement of exhaustion of administrative remedies, to wit:

The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1) where the question in
dispute is purely a legal one, or (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess
of jurisdiction; or (3) where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied
or assumed approval of the latter, unless actually disapproved by him, or (4) where there are circumstances indicating the urgency of
judicial intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17,
1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.

Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43
SCRA 291), when there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse
(Sta. Maria vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only applicable, based on the
first sentence thereof, if the person or entity charged with the duty to exhaust the administrative remedy of appeal to the
appropriate government agency has been a party or has been made a party in the proceedings wherein the decision to be appealed
was rendered. It has been established by the facts that petitioner was never made a party to the proceedings before respondent
DENR-EMB RVI. Petitioner was only informed that the project had already been approved after the ECC was already granted. 138 Not
being a party to the said proceedings, it does not appear that petitioner was officially furnished a copy of the decision, from which
the 15-day period to appeal should be reckoned, and which would warrant the application of Section 6, Article II of DENR DAO 2003-
30.

Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it stands to be aggrieved
by the decision,139 because it claims that the reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay
side, where petitioner’s members own establishments engaged in the tourism trade. As noted earlier, petitioner contends that the
declared objective of the reclamation project is to exploit Boracay’s tourism trade because the project is intended to enhance
support services thereto; however, this objective would not be achieved since the white-sand beaches for which Boracay is famous
might be negatively affected by the project. Petitioner’s conclusion is that respondent Province, aided and abetted by respondents
PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus be compelled to perform their
duties under said laws.

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under the writ of
continuing mandamus, which is a special civil action that may be availed of "to compel the performance of an act specifically
enjoined by law"140 and which provides for the issuance of a TEPO "as an auxiliary remedy prior to the issuance of the writ
itself."141 The Rationale of the said Rules explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the implementation of
regulatory programs by the appropriate government agencies.

Thus, a government agency’s inaction, if any, has serious implications on the future of environmental law enforcement. Private
individuals, to the extent that they seek to change the scope of the regulatory process, will have to rely on such agencies to take the
initial incentives, which may require a judicial component. Accordingly, questions regarding the propriety of an agency’s action or
inaction will need to be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the enforcement of the conduct
of the tasks to which the writ pertains: the performance of a legal duty. 142 (Emphases added.)

The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to ensure the successful
implementation of the reliefs mandated under the court’s decision" and, in order to do this, "the court may compel the submission
of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its
decision."143

According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was conditioned upon, among
others, a properly-secured ECC from respondent DENR-EMB RVI. For this reason, petitioner seeks to compel respondent Province to
comply with certain environmental laws, rules, and procedures that it claims were either circumvented or ignored. Hence, we find
that the petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection
with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from
the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of non-forum shopping.

SECTION 2. Where to file the petition.—The petition shall be filed with the 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.

Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred, the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the questions of unique
national and local importance raised here that pertain to laws and rules for environmental protection, thus it was justified in coming
to this Court.

Having resolved the procedural issue, we now move to the substantive issues.

On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws and regulations, and
whether respondent Province complied with all the requirements under the pertinent laws and regulations

Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is misclassified as a single project when in fact
it is co-located. Petitioner also questions the classification made by respondent Province that the reclamation project is merely an
expansion of the existing jetty port, when the project descriptions embodied in the different documents filed by respondent
Province describe commercial establishments to be built, among others, to raise revenues for the LGU; thus, it should have been
classified as a new project. Petitioner likewise cries foul to the manner by which respondent Province allegedly circumvented the
documentary requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its previous project in 1999
and claiming that the new project is a mere expansion of the previous one.

As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued by respondent DENR-EMB
RVI covered an area of 2,691 square meters in Caticlan, and its application for reclamation of 40 hectares with respondent PRA was
conditioned on its submission of specific documents within 120 days. Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the reclamation project and that the subject matter of this case
had thus been limited to 2.64 hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan Beach
Zone Restoration and Protection Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less."144

The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in the subject reclamation
project has been limited to 2.64 hectares, this case has not become moot and academic, as alleged by respondents, because the
Court still has to check whether respondents had complied with all applicable environmental laws, rules, and regulations pertaining
to the actual reclamation project.

We recognize at this point that the 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. 145 It is the DENR that has the duty to implement the EIS system. It appears,
however, that respondent DENR-EMB RVI’s evaluation of this reclamation project was problematic, based on the valid questions
raised by petitioner.

Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear great weight in this case. However, the
following are the issues that put in question the wisdom of respondent DENR-EMB RVI in issuing the ECC:

1. Its approval of respondent Province’s classification of the project as a mere expansion of the existing jetty port in
Caticlan, instead of classifying it as a new project;

2. Its classification of the reclamation project as a single instead of a co-located project;

3. The lack of prior public consultations and approval of local government agencies; and

4. The lack of comprehensive studies regarding the impact of the reclamation project to the environment.

The above issues as raised put in question the sufficiency of the evaluation of the project by respondent DENR-EMB RVI.

Nature of the project

The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and authority to state whether
this is a new project, subject to the more rigorous environmental impact study requested by petitioner, or it is a mere expansion of
the existing jetty port facility.
The second issue refers to the classification of the project by respondent Province, approved by respondent DENR-EMB RVI, as single
instead of co-located. Under the Revised Procedural Manual, the "Summary List of Additional Non-Environmentally-Critical Project
(NECP) Types in ECAs Classified under Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a separate item
from "transport terminal facilities." This creates the question of whether this project should be considered as consisting of more
than one type of activity, and should more properly be classified as "co-located," under the following definition from the same
Manual, which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects, under one or more
proponents/locators, which are located in a contiguous area and managed by one administrator, who is also the ECC applicant. The
co-located project may be an economic zone or industrial park, or a mix of projects within a catchment, watershed or river basin, or
any other geographical, political or economic unit of area. Since the location or threshold of specific projects within the contiguous
area will yet be derived from the EIA process based on the carrying capacity of the project environment, the nature of the project is
called "programmatic." (Emphasis added.)

Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address the question of whether
this could be deemed as a group of single projects (transport terminal facility, building, etc.) in a contiguous area managed by
respondent Province, or as a single project.

The third item in the above enumeration will be discussed as a separate issue.

The answer to the fourth question depends on the final classification of the project under items 1 and 3 above because the type of
EIA study required under the Revised Procedural Manual depends on such classification.

The very definition of an EIA points to what was most likely neglected by respondent Province as project proponent, and what was in
turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:

An [EIA] 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 enhancement measures addressing these consequences to protect the environment and the community’s
welfare.146 (Emphases supplied.)

Thus, 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.

The project now before us involves reclamation of land that is more than five times the size of the original reclaimed land.
Furthermore, the area prior to construction merely contained a jetty port, whereas the proposed expansion, as described in the
EPRMP submitted by respondent Province to respondent DENR-EMB RVI involves so much more, and we quote:

The expansion project will be constructed at the north side of the existing jetty port and terminal that will have a total area of 2.64
hectares, more or less, after reclamation. The Phase 1 of the project construction costing around ₱260 million includes the following:

1. Reclamation - 3,000 sq m (expansion of jetty port)

2. Reclamation - 13,500 sq m (buildable area)

3. Terminal annex building - 250 sq m

4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)

5. Health and wellness center

6. Access road - 12 m (wide)

7. Parking, perimeter fences, lighting and water treatment sewerage system

8. Rehabilitation of existing jetty port and terminal

 xxxx

The succeeding phases of the project will consist of [further] reclamation, completion of the commercial center building, bay walk
commercial strip, staff building, ferry terminal, a cable car system and wharf marina. This will entail an additional estimated cost of
₱785 million bringing the total investment requirement to about ₱1.0 billion. 147 (Emphases added.)

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a significant portion of the
reclaimed area would be devoted to the construction of a commercial building, and the area to be utilized for the expansion of the
jetty port consists of a mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by respondent
Province should at the very least 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.

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a narrow strait. This
becomes more imperative because 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.

We had occasion to emphasize the duty of local government units to ensure the quality of the environment under Presidential
Decree No. 1586 in Republic of the Philippines v. The City of Davao, 148 wherein we held:

Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local government unit as a body politic
and corporate endowed with powers to be exercised by it in conformity with law. As such, it performs dual functions, governmental
and proprietary. Governmental functions are those that concern the health, safety and the advancement of the public good or
welfare as affecting the public generally. Proprietary functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit. When exercising governmental powers and performing
governmental duties, an LGU is an agency of the national government. When engaged in corporate activities, it acts as an agent of
the community in the administration of local affairs.

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s right to a balanced ecology.
Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed
with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD
1586.

xxxx

Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his
duly authorized representative." The Civil Code defines a person as either natural or juridical. The state and its political subdivisions,
i.e., the local government units are juridical persons. Undoubtedly therefore, local government units are not excluded from the
coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a balance between
socio-economic development and environmental protection, which are the twin goals of sustainable development. The above-
quoted first paragraph of the Whereas clause stresses that this can only be possible if we adopt a comprehensive and integrated
environmental protection program where all the sectors of the community are involved, i.e., the government and the private
sectors. The local government units, as part of the machinery of the government, cannot therefore be deemed as outside the scope
of the EIS system.149 (Emphases supplied.)

The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study, and if it should find
necessary, to require respondent Province to address these environmental issues raised by petitioner and submit the correct EIA
report as required by the project’s specifications. The Court requires respondent DENR-EMB RVI to complete its study and submit a
report within a non-extendible period of three months. Respondent DENR-EMB RVI should establish to the Court in said report why
the ECC it issued for the subject project should not be canceled.

Lack of prior public consultation

The Local Government Code establishes the duties of national government agencies in the maintenance of ecological balance, and
requires them to secure prior public consultation and approval of local government units for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local government of
Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency of the government to undertake
reclamation nationwide. Hence, it was necessary for respondent Province to go through respondent PRA and to execute a MOA,
wherein respondent PRA’s authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office of
the DENR, is also a national government institution which is tasked with the issuance of the ECC that is a prerequisite to projects
covered by environmental laws such as the one at bar.

This project can be classified as a national project that affects the environmental and ecological balance of local communities, and is
covered by the requirements found in the Local Government Code provisions that are quoted below:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological 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.

In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to "national programs and/or projects
which are to be implemented in a particular local community" 151 and that it should be read in conjunction with Section 26. We held
further in this manner:

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. 152 (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established that this project as described above falls under Section 26
because the commercial establishments to be built on phase 1, as described in the EPRMP quoted above, could cause pollution as it
could generate garbage, sewage, and possible toxic fuel discharge. 153

Our ruling in Province of Rizal v. Executive Secretary 154 is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there was no statutory
requirement for the sangguniang bayan  of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are
inapplicable to projects which are not environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the
power to, among other things, "enact ordinances, approve resolutions and appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section 16 of th(e) Code." These include:

(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts
which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and
smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn
farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of
ecological imbalance; [Section 447 (1)(vi)]
 (2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a
comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the
pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive
land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous
centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance
with the provisions of this Code; [Section 447 (2)(vi-ix)]

(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in addition to said services and facilities, …providing for the establishment,
maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and
other similar forest development projects …and, subject to existing laws, establishing and providing for the maintenance,
repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the
water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs;
protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of
appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters
of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and
regulating the consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental
and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and
prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s
implementation is illegal.155 (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required by law to have been conducted and secured by
the respondent Province. Accordingly, the information dissemination conducted months after the ECC had already been issued was
insufficient to comply with this requirement under the Local Government Code. Had they been conducted properly, the prior public
consultation should have considered the ecological or environmental concerns of the stakeholders and studied measures alternative
to the project, to avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain the
favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined
by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are
taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings
conducted during the EIA process are to be documented. The public hearing/consultation Process report shall be validated by the
EMB/EMB RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be initiated early so that
concerns of stakeholders could be taken into consideration in the EIA study. In this case, respondent Province had already filed its
ECC application before it met with the local government units of Malay and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government Agencies (NGAs) and LGUs
are required pursuant to the DENR Memorandum Circular No. 2007-08. However, we still find that the LGC requirements of
consultation and approval apply in this case. This is because a Memorandum Circular cannot prevail over the Local Government
Code, which is a statute and which enjoys greater weight under our hierarchy of laws.

Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng mga Barangay-Malay
Chapter still opposed the project. Thus, when respondent Province commenced the implementation project, it violated Section 27 of
the LGC, which clearly enunciates that "[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."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the
Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28,
2012, which were both undoubtedly achieved at the urging and insistence of respondent Province. As we have established above,
the respective resolutions issued by the LGUs concerned did not render this petition moot and academic.

It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay and the protection of
the environment, lest they kill the proverbial hen that lays the golden egg. At the beginning of this decision, we mentioned that
there are common goals of national significance that are very apparent from both the petitioner’s and the respondents’ respective
pleadings and memoranda.

The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of Principles and State Policies,
of the 1987 Constitution, which we quote below:

SECTION 16. 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.

xxxx

SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides
incentives to needed investments.

The protection of the environment in accordance with the aforesaid constitutional mandate is the aim, among others, of Presidential
Decree No. 1586, "Establishing an Environmental Impact Statement System, Including Other Environmental Management Related
Measures and For Other Purposes," which declared in its first Section that it is "the policy of the State to attain and maintain a
rational and orderly balance between socio-economic growth and environmental protection."

The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of Republic Act No. 9593, or
"The Tourism Act of 2009," which reads:

SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of the national economy and an industry
of national interest and importance, which must be harnessed as an engine of socioeconomic growth and cultural affirmation to
generate investment, foreign exchange and employment, and to continue to mold an enhanced sense of national pride for all
Filipinos. (Emphasis ours.)

The primordial role of local government units under the Constitution and the Local Government Code of 1991 in the subject matter
of this case is also unquestionable. The Local Government Code of 1991 (Republic Act No. 7160) pertinently provides:

Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the national government to the local government units. 156 (Emphases ours.)

As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues would benefit all the
parties. Thus, respondent Province’s cooperation with respondent DENR-EMB RVI in the Court-mandated review of the proper
classification and environmental impact of the reclamation project is of utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED.1âwphi1 The TEPO issued by this Court is hereby
converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau Regional Office VI
shall revisit and review the following matters:

a. its classification of the reclamation project as a single instead of a co-located project;

 b. its approval of respondent Province’s classification of the project as a mere expansion of the existing jetty port in
Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and comprehensive studies,
which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and submit to
the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-governmental
organizations and other stakeholders and sectors concerned as required by Section 27 in relation to Section 26 of
the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent Province of the
requirements to be issued by respondent DENR-EMB RVI in connection to the environmental concerns raised by petitioner,
and shall coordinate with respondent Province in modifying the MOA, if necessary, based on the findings of respondent
DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by Governor Carlito S.
Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI) are mandated to submit their respective
reports to this Court regarding their compliance with the requirements set forth in this Decision no later than three (3)
months from the date of promulgation of this Decision.

5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives or persons acting
in their place or stead, shall immediately cease and desist from continuing the implementation of the project covered by
ECC-R6-1003-096-7100 until further orders from this Court. For this purpose, the respondents shall report within five (5)
days to this Court the status of the project as of their receipt of this Decision, copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.
 EN BANC

July 26, 2016

G.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC., Petitioner

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE., JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention

x-----------------------x

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF
PLANT INDUSTRY AND THE FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners,
vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN, and EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

x-----------------------x

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner,

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZLUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.

x-----------------------x

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner,

vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
L. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN MARTHINE
LOPEZ, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:
Before the Court are nine (9) Motions for Reconsideration 1 assailing the Decision2 dated December 8, 2015 of the Court (December
8, 2015 Decision), which upheld with modification the Decision 3 dated May 17, 2013 and the Resolution4 dated September 20, 2013
of the Court of Appeals (CA) in CA-G.R. SP No. 00013.

The Facts

The instant case arose from the conduct of field trials for "bioengineered eggplants," known as Bacillus thuringiensis (Bt) eggplant
(Bt talong),  administered pursuant to the Memorandum of Undertaking 5 (MOU) entered into by herein petitioners University of the
Philippines Los Baños Foundation, Inc. (UPLBFI) and International Service for the Acquisition of Agri-Biotech Applications, Inc.
(ISAAA), and the University of the Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the crystal toxin
genes from the soil bacterium Bt, which produces the CrylAc  protein that is toxic to target insect pests. The Cry1Ac  protein is said to
be highly specific to lepidopteran larvae  such as the fruit and shoot borer, the most destructive insect pest to eggplants. 6

From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the implementing institution of the field trials,
conducted a contained experiment on Bt talong under the supervision of the National Committee on Biosafety of the Philippines
(NCBP).7 The NCBP, created under Executive Order No. (EO) 430, 8 is the regulatory body tasked to: (a) "identify and evaluate
potential hazards involved in initiating genetic engineering experiments or the introduction of new species and genetically
engineered organisms and recommend measures to minimize risks"; and (b) ''formulate and review national policies and guidelines
on biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic materials for the protection of public
health, environment[,] and personnel[,] and supervise the implementation thereof." 9 Upon the completion of the contained
experiment, the NCBP issued a Certificate10 therefor stating that all biosafety measures were complied with, and no untoward
incident had occurred.11

On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-year Biosafety Permits 12 for field testing
of Bt talong13after UPLB's field test proposal satisfactorily completed biosafety risk assessment for field testing pursuant to the
Department of Agriculture's (DA) Administrative Order No. 8, series of 2002 14 (DAO 08-2002),15 which provides for the rules and
regulations for the importation and release into the environment of plants and plant products derived from the use of modern
biotechnology.16 Consequently, field testing proceeded in approved trial sites in North Cotabato, Pangasinan, Camarines Sur, Davao
City, and Laguna.17

On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), Magsasaka at Siyentipiko sa Pagpapaunlad
ng Agrikultura (MASIPAG),  and others (respondents) filed before the Court a Petition for Writ of Continuing Mandamus and Writ
of Kalikasan  with Prayer for the Issuance of a Temporary Environmental Protection Order (TEPO) 18 (petition for Writ
of Kalikasan)  against herein petitioners the Environmental Management Bureau (EMB) of the Department of Environment and
Natural Resources (DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the DA, UPLBFI, and ISAAA, and UPMFI, alleging
that the Bt talong  field trials violated their constitutional right to health and a balanced ecology considering, among others, that: (a)
the Environmental Compliance Certificate (ECC), as required by Presidential Decree No. (PD) 1151, 19 was not secured prior to the
field trials;20 (b)  the required public consultations under the Local Government Code (LGC) were not complied with; 21 and (c) as a
regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and the environment, and that there is no
independent, peer-reviewed study showing its safety for human consumption and the environment. 22 Further, they contended that
since the scientific evidence as to the safety of Bt talong  remained insufficient or uncertain, and that preliminary scientific
evaluation shows reasonable grounds for concern, the precautionary principle should be applied and, thereby, the field trials be
enjoined.23

On May 2, 2012, the Court issued24 a Writ of Kalikasan  against petitioners (except UPLB25) and UPMFI, ordering them to make a
verified return within a non-extendible period of ten (10) days, as provided for in Section 8, Rule 7 of the Rules of Procedure for
Environmental Cases.26 Thus, in compliance therewith, ISAAA, EMB/BPI/FPA, UPLBFI, and UPMFI 27 filed their respective verified
returns,28 and therein maintained that: (a)  all environmental laws were complied with, including the required public consultations in
the affected communities; (b) an ECC was not required for the field trials as it will not significantly affect the environment nor pose a
hazard to human health; (c) there is a plethora of scientific works and literature, peer-reviewed, on the safety of Bt talong for
human consumption; (d) at any rate, the safety of Bt talong  for human consumption is irrelevant because none of the eggplants will
be consumed by humans or animals and all materials not used for analyses will be chopped, boiled, and buried following the
conditions of the Biosafety Permits; and (e) the precautionary principle could not be applied as the field testing was only a part of a
continuing study to ensure that such trials have no significant and negative impact on the environment. 29

On July 10, 2012, the Court issued a Resolution 30 referring the case to the Court of Appeals for acceptance of the return of the writ
and for hearing, reception of evidence, and rendition of judgment. 31 In a hearing before the CA on August 14, 2012, UPLB was
impleaded as a party to the case and was furnished by respondents a copy of their petition. Consequently the CA directed UPLB to
file its comment to the petition32 and, on August 24, 2012, UPLB filed its Answer 33 adopting the arguments and allegations in the
verified return filed by UPLBFI. On the other hand, in a Resolution 34 dated February 13, 2013, the CA discharged UPMFI as a party to
the case pursuant to the Manifestation and Motion filed by respondents in order to expedite the proceedings and resolution of the
latter's petition.

The CA Ruling

In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed petitioners to pem1anently cease and desist
from conducting the Bt talong  field trials.36 At the outset, it did not find merit in petitioners' contention that the case should be
dismissed on the ground of mootness, noting that the issues raised by the latter were "capable of repetition yet evading review"
since the Bt talong  field trial was just one of the phases or stages of an overall and bigger study that is being conducted in relation to
the said genetically-modified organism.37 It then held that the precautionary principle set forth under Section 1, 38 Rule 20 of the
Rules of Procedure for Environmental Cases39 is relevant, considering the Philippines' rich biodiversity and uncertainty surrounding
the safety of Bt talong. It noted the possible irreversible effects of the field trials and the introduction of Bt talong to the market,
and found the existing regulations issued by the DA and the Department of Science and Technology (DOST) insufficient to guarantee
the safety of the environment and the health of the people. 40

Aggrieved, petitioners separately moved for reconsideration. 41 However, in a Resolution42 dated September 20, 2013, the CA denied
the same and remarked that introducing genetically modified plant into the ecosystem is an ecologically imbalancing act. 43 Anent
UPLB 's argument that the Writ of Kalikasan  violated its right to academic freedom, the CA emphasized that the writ did not stop the
research on Bt talong  but only the procedure employed in conducting the field trials, and only at this time when there is yet no law
ensuring its safety when introduced to the environment. 44

Dissatisfied, petitioners filed their respective petitions for review on certiorari before this Court.

The Proceedings Before the Court

In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly, affinned with modification the ruling of the
CA.46 Agreeing with the CA, the Court held that the precautionar; principle applies in this case since the risk of harm from the field
trials of Bt talong  remains uncertain and there exists a possibility of serious and irreversible harm. The Court observed that
eggplants are a staple vegetable in the country that is mostly grown by small-scale farmers who are poor and marginalized; thus,
given the country's rich biodiversity, the consequences of contamination and genetic pollution would be disastrous and
irreversible.47

The Court likewise agreed with the CA in not dismissing the case for being moot and academic despite the completion and
termination of the Bt talong field trials, on account of the following exceptions to the mootness principle: (a) the exceptional
character of the situation and the paramount public interest is involved; and (b) the case is capable of repetition yet evading
review.48

Further, the Court noted that while the provisions of DAO 08-2002 were observed, the National Biosafety Framework (NBF)
established under EO 514, series of 200649 which requires public participation in all stages of biosafety decision-making, pursuant to
the Cartagena Protocol on Biosafety50 which was acceded to by the Philippines in 2000 and became effective locally in 2003, was not
complied with.51 Moreover, the field testing should have been subjected to Environmental Impact Assessment (EIA), considering that
it involved new technologies with uncertain results.52

Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared DAO 08-2002 null and void for failure to
consider the provisions of the NBF. The Court also temporarily enjoined any application for contained use, field testing, propagation,
commercialization, and importation of genetically modified organisms until a new administrative order is promulgated in accordance
with law.53

The Issues Presented in the Motions for Reconsideration

Undaunted, petitioners moved for reconsideration, 54 arguing, among others, that: (a) the case should have been dismissed for
mootness in view of the completion and termination of the Bt talong field trials and the expiration of the Biosafety Permits; 55 (b) the
Court should not have ruled on the validity of DAO 08-2002 as it was not raised as an issue; 56 and (c) the Court erred in relying on the
studies cited in the December 8, 2015 Decision which were not offered in evidence and involved Bt corn, not Bt talong.57
In their Consolidated Comments,58 respondents maintain, in essence, that: (a)  the case is not mooted by the completion of the field
trials since field testing is part of the process of commercialization and will eventually lead to propagation, commercialization, and
consumption of Bt talong as a consumer product;59 (b) the validity of DAO 08-2002 was raised by respondents when they argued in
their petition for Writ of Kalikasan  that such administrative issuance is not enough to adequately protect the Constitutional right of
the people to a balanced and healthful ecology; 60 and (c) the Court correctly took judicial notice of the scientific studies showing the
negative effects of Bt technology and applied the precautionary principle.61

The Court's Ruling

The Court grants the motions for reconsideration on the ground of mootness.

As a rule, the Court may only adjudicate actual, ongoing controversies. 62 The requirement of the existence of a "case" or an "actual
controversy" for the proper exercise of the power of judicial review proceeds from Section 1, Article VIII of the 1987 Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the comis of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied)

Accordingly, the Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it becomes non-
justiciable.63

An action is considered "moot" when it no longer presents a justiciable controversy because the issues involved have become
academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention
unless the issue is likely to be raised again between the parties. There is nothing for the court to resolve as the determination
thereof has been overtaken by subsequent events.64

Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second,  the exceptional character of the situation and the paramount public interest are involved; third, when the
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review.65 Thus, jurisprudence recognizes these four instances as exceptions to the mootness
principle.

In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of exceptional character and paramount public
interest is involved, and (b) it is likewise capable of repetition yet evading review. Hence, it was excepted from the mootness
principle.66 However, upon a closer scrutiny of the parties' arguments, the Court reconsiders its ruling and now finds merit in
petitioners' assertion that the case should have been dismissed for being moot and academic, and that the aforesaid exceptions to
the said rule should not have been applied.

I. On the paramount public interest exception.

Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a case involves paramount public interest in
relation to the mootness principle. However, a survey of cases would show that, as a common guidepost for application, there
should be some perceivable benefit to the public which demands the Court to proceed with the resolution of otherwise moot
questions.

In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the validity of Republic Act No. (RA)
4880,68 which prohibits the early nomination of candidates for elective offices and early election campaigns or partisan political
activities became moot by reason of the holding of the 1967 elections before the case could be decided. Nonetheless, the Court
treated the petition as one for prohibition and rendered judgment in view of "the paramount public interest and the undeniable
necessity for a ruling, the national elections [of 1969] being barely six months away." 69

In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election protest subject of that case notwithstanding
the supervening death of one of the contestants. According to the Court, in an election contest, there is a paramount need to dispel
the uncertainty that beclouds the real choice of the electorate. 71
In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential Proclamation No. 1017, s. 2006, 73 which
declared a state of National Emergency, even though the same was lifted before a decision could be rendered. The Court explained
that the case was one of exceptional character and involved paramount public interest, because the people's basic rights to
expression, assembly, and of the press were at issue. 74

In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and corrupt practices under Section 3 (e) of RA
3019.76 One of the accused appealed the conviction, while the other filed a petition for certiorari  before the Court. While the
appellant died during the pendency of his appeal, the Court still ruled on the merits thereof considering the exceptional character of
the appeals in relation to each other, i.e.,  the two petitions were so intertwined that the absolution of the deceased was
determinative of the absolution of the other accused. 77

More recently, in Funa v. Manila Economic and Cultural Office (MECO), 78the petitioner prayed that the Commission on Audit (COA)
be ordered to audit the MECO which is based in Taiwan, on the premise that it is a government-owned and controlled
corporation.79 The COA argued that the case is already moot and should be dismissed, since it had already directed a team of
auditors to proceed to Taiwan to audit the accounts of MECO. 80 Ruling on the merits, the Court explained that the case was of
paramount public interest because it involved the COA's performance of its constitutional duty and because the case concerns the
legal status of MECO, i.e., whether it may be considered as a government agency or not, which has a direct bearing on the country's
commitment to the One China Policy of the People's Republic of China. 81

In contrast to the foregoing cases, no perceivable benefit to the public - whether rational or practical - may be gained by resolving
respondents' petition for Writ of Kalikasan on the merits.

To recount, these cases, which stemmed from herein respondents petition for Writ of Kalikasan, were mooted by the undisputed
expiration of the Biosafety Permits issued by the BPI and the completion and termination of the Bt talong field trials subject of the
same.82 These incidents effectively negated the necessity for the reliefs sought by respondents in their petition for Writ
of Kalikasan  as there was no longer any field test to enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the
reliefs petitioner sought and granted by the CA were no longer capable of execution.

At this juncture, it is important to understand that the completion and termination of the field tests do not mean that herein
petitioners may inevitably proceed to commercially propagate Bt talong.83 There are three (3) stages before genetically-modified
organisms (GMOs) may become commercially available under DAO 08-2002 84 and each stage is distinct, such that "[s]ubsequent
stages can only proceed if the prior stage/s [is/]are completed and clearance is given to engage in the next regulatory
stage."85 Specifically, before a genetically modified organism is allowed to be propagated under DAO 08-2002: (a)  a permit for
propagation must be secured from the BPI; (b)  it can be shown that based on the field testing conducted in the Philippines, the
regulated article will not pose any significant risks to the environment; (c) food and/or feed safety studies show that the regulated
article will not pose any significant risks to human and animal health; and (d)  if the regulated article is a pest-protected plant, its
transformation event has been duly registered with the FPA. 86

As the matter never went beyond the field testing phase, none of the foregoing tasks related to propagation were pursued or the
requirements therefor complied with. Thus, there are no guaranteed after-effects to the already concluded Bt talong field trials that
demand an adjudication from which the public may perceivably benefit. Any future threat to the right ,of herein respondents or the
public in general to a healthful and balanced ecology is therefore more imagined than real.

In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness of Bt talong - or GMOs, for that matter -
until an actual and justiciable case properly presents itself before the Court. In his Concurring Opinion 87 on the main, Associate
Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly pointed out that "the findings [resulting from the Bt talong field trials]
should be the material to provide more rigorous scientific analysis of the various claims made in relation to Bt talong."88 True
enough, the concluded field tests ·- like those in these cases – would yield data that may prove useful for future studies and
analyses. If at all, resolving the petition for Writ of Kalikasan would unnecessarily arrest the results of further research and testing
on Et talong,  and even GMOs in general, and hence, tend to hinder scientific advancement on the subject matter.

More significantly, it is clear that no benefit would be derived by the public in assessing the merits of field trials whose parameters
are not only unique to the specific type of Bt talong  tested, but are now, in fact, rendered obsolete by the supervening change in the
regulatory framework applied to GMO field testing. To be sure, DAO 08-2002 has already been superseded by Joint Department
Circular No. 1, series of 201689 (JDC 01-2016), issued by the Department of Science and Technology (DOST), the DA, the DENR, the
Department of Health (DOH), and the Department of Interior and Local Government (DILG), which provides a substantially different
regulatory framework from that under DAO 08-2002 as will be detailed below. Thus, to resolve respondents' petition for Writ
of Kalikasan  on its merits, would be tantamount to an unnecessary scholarly exercise for the Court to assess alleged violations of
health and environmental rights that arose from a past test case whose bearings do not find any - if not minimal -- relevance to cases
operating under today's regulatory framework.

Therefore, the paramount public interest exception to the mootness rule should not have been applied.1âwphi1

II. The case is not one capable of repetition vet evading review.

Likewise, contrary to the Court's earlier ruling, 90 these cases do not fall under the "capable of repetition yet evading review"
exception.

The Court notes that the petition for Writ of Kalikasan specifically raised issues only against the field testing of Bt talong  under the
premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a) fully inform the eople regarding the health, environment, and
other hazards involved;92 and (b) conduct any valid risk assessment before conducting the field trial. 93 As further pointed out by
Justice Leonen, the reliefs sought did not extend far enough to enjoin the use of the results of the field trials that have been
completed. Hence, the petition's specificity prevented it from falling under the above exception to the mootness rule. 94

More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case from being one capable of repetition so
as to warrant review despite its mootness. To contextualize, JDC 01-2016 states that:

Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling and use, transboundary
movement, release into the environment, and management of genetically-modified plant and plant products derived from the use of
modern technology, included under "regulated articles."

As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the conduct of field testing now applies.

Notably, the new framework under JDC 01-2016 is substantially different from that under DAO 08-2002. In fact, the new parameters
in JDC 01-2016 pertain to provisions which prompted the Court to invalidate D'AO 08-2002. In the December 8, 2015 Decision of the
Court, it was observed that: (a) DAO 08-2002 has no mechanism to mandate compliance with inten1ational biosafety protocols; 95 (b)
DAO 08-2002 does not comply with the transparency and public participation requirements under the NBF; 96 and (c) risk assessment
is conducted by an informal group, called the Biosafety Advisory Team of the DA, composed of representatives from the BPI, Bureau
of Animal Industry, FPA, DENR, DOH, and DOST.97

Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment, and the DA was allowed to consider the
expert advice of, and guidelines developed by, relevant inteniational organizations and regulatory authorities of countries with
significant experience in the regulatory supervision of the regulated article. 98 However, under JDC 01-2016, the
CODEX Alimentarius  Guidelines was adopted to govern the risk assessment of activities involving the research, development,
handling and use, transboundary movement, release into the environment, and management of genetically modified plant and plant
products derived from the use of modem biotechnology. 99 Also, whereas DAO 08-2002 was limited to the DA's authority in
regulating the importation and release into the environment of plants and plant products derived from the use of modern
biotechnology,100 under JDC 01-2016, various relevant government agencies such as the DOST, DOH, DENR, and the DILG now
participate in all stages of the biosafety decision-making process, with the DOST being the central and lead agency. 101

JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases involving field trials and requires
applications for permits and permits already issued to be made public by posting them online in the websites of the NCBP and the
BPI.102 The composition of the Institutional Biosafety Committee (IBC) has also been modified to include an elected local official in
the locality where the field testing will be conducted as one of the community representatives. 103 Previously, under DAO 08-2002,
the only requirement for the community representatives is that they shall not be affiliated with the applicant and shall be in a
position to represent the interests of the communities where the field testing is to be conducted. 104

JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and Technical Review Panel (STRP), the pool
of scientists that evaluates the risk assessment submitted by the applicant for field trial, commercial propagation, or direct use of
regulated articles. Aside from not being an official, staff or employee of the DA or any of its attached agencies, JDC 01-2016 requires
that members of the STRP: (a) must not be directly or indirectly employed or engaged by a company or institution with pending
applications for pennits under JDC 01-2016; (b) must possess technical expertise in food and nutrition, toxicology, ecology, crop
protection, environmental science, molecular biology and biotechnology, genetics, plant breeding, or animal nutrition; and (c) must
be well-respected in the scientific community. 105
Below is a tabular presentation of the differences between the relevant portions of DAO 08-2002 and JDC 01-2016:

DAO 08-2002 JDC 01-2016

1. As to coverage and government participation

WHEREAS, under Title IV, Chapter 4, Section 19 of ARTICLE I. GENERAL PROVISIONS

the Administrative Code of 1987, the Department of
Agriculture, through the Bureau of Plant Industry, is Section 1. Applicability. This Joint Department
responsible for the production of improved planting Circular shall apply to the research, development,
materials and protection of agricultural crops from handling and use, transboundary movement, release
pests and diseases; and into the environment, and management of
genetically-modified plant and plant products
xxxx derived from the use of modern biotechnology,
included under "regulated articles."
PART I
GENERAL PROVISIONS xxxx

xxxx ARTICLE III. ADMINISTRATIVE

PART I FRAMEWORK
GENERAL PROVISIONS
Section 4. Role of National Government
xxxx Agencies Consistent with the NBF and the laws
granting their powers and functions, national
Section 2 government agencies shall have the following roles:
Coverage
A. [DA]. As the principal agency of the Philippine
A. Scope - This Order covers the importation or Government responsible for the promotion of
release into the environment of: 1. Any plant which agricultural and rural growth and development so as
has been altered or produced through the use of to ensure food security and to contribute to poverty
modem biotechnology if the donor organism, host
organism, or vector or vector agent belongs to any of alleviation, the DA shall take the lead in addressing
the genera or taxa classified by BPI as meeting the biosafety issues related to the country's agricultural
definition of plant pest or is a medium for the productivity and food security.x x x.
introduction of noxious weeds; or
B. [DOST]. As the premier science and technology
2. Any plant or plant product altered or produced body in the country, the DOST shall take the lead in
through the use of modern biotechnology which may ensuring that the best available science is utilized
pose significant risks to human health and the and applied in adopting biosafety policies, measures
environment based on available scientific and and guidelines, and in making biosafety decision.
technical information.
x xx.
B. Exceptions. - This Order shall not apply to the
contained use of a regulated article, which is within C. [DENR]. As the primary government agency
the regulatory supervision of NCBP. responsible for the conservation management,
development and proper use of the country's
environment and natural resources, the DENR shall
ensure that environmental assessments are done
and impacts identified in biosafety decisions. x x x.

D. [DOH]. The DOH, as the principal authority on

health, shall formulate guidelines in assessing the
health impacts posed by modern biotechnology and
its applications. x x x.
 E. [DILG]. The DILG shall coordinate with the DA,
DOST, DENR and DOH in overseeing the
implementation of this Circular in relation to the
activities that are to be implemented in specific
LGUs, particulady in relation to the conduct of public
consultations as required under the Local
Government Code. x x x.

2. As to guidelines in risk assessment

PART I ARTICLE II. BIOSAFETY DECISIONS

GENERAL PROVISIONS Section 3. Guidelines in Making Biosafety Decisions

xxxx The principles under the NBF shall guide concerned

agencies in making biosafety decisions, including:
Section 3
Risk Assessment xxxx

A. Principles of Risk Assessment - No regulated article B. Risk Assessment. Risk assessment shall be
shall be allowed to be imported or released into the mandatory and central in making biosafety decisions,
environment without the conduct of a risk consistent with policies and standards on risk
assessment performed in accordance with this Order. assessment issued by the NCBP; and guided by Annex
The following principles shall be followed when III of the Cartagena Protocol on Biosafety. Pursuant
performing a risk assessment to determine whether to the NBF, the following principles shall be followed
a regulated article poses significant risks to human when performing a risk assessment to determine
health and the environment: whether a regulated article poses significant risks to
human health and the environment.
1. The risk assessment shall be carried out in a
scientifically sound and transparent manner based 1. The risk assessment shall be carried out in a
on available scientific and technical information. The scientifically sound and transparent manner based
expert advice of, and guidelines developed by, on available scientific and technical information. The
relevant international organizations and regulatory expert advice of and guidelines developed by,
authorities of countries with significant experience in relevant international organizations, including
the regulatory supervision of the regulated article intergovernmental bodies, and regulatory authorities
shall be taken into account in the conduct of risk of countries with significant experience in the
assessment. regulatory supervision of the regulated article shall
be taken into account. In the conduct of risk
x x xx assessment, CODEX Alimentarius Guidelines on the
Food Safety Assessment of Foods Derived from the
Recombinant-DNA Plants shall internationally
adopted as well as other internationally accepted
consensus documents.

x x x x (Underscoring supplied)

3. As to public participation

PART III ARTICLE V. FIELD TRIAL OF REGULATED ARTICLES

APPROVAL PROCESS FOR FIELD TESTING OF
REGULATE ARTICLES Section 12. Public Participation for Field Trial

xxxx A. The BPI shall make public all applications and

Biosafety Permits for Field Trial through posting on
Section 8 the NCBP and BPI websites, and in the offices of the
DA and DOST in the province, city, or municipality
Requirements for Field Testing where the field trial will be conducted.

xxxx x x xx

G. Public Consultation. - The applicant, acting

through its IBC, shall notity and invite comments on
the field testing proposal from the barangays and
city/municipal governments with jurisdiction over
the field test sites. The IBC shall post for three (3)
consecutive weeks copies of the Public Information
Sheet for Field Testing  approved by the BPI in at least
three (3) conspicuous places in each of the
concerned barangay and city/municipal halls.
The Public Information Sheet for Field Testing  shall,
among others, invite interested parties to send their
comments on the proposed field testing to BPI within
a period of thirty (30) days from the date of posting.
It shall be m a language understood in the
community. During the comment period, any
interested person may submit to BPI written
comments regarding the application. The applicant
shall submit proof of posting in the form of
certifications from the concerned barangay captains
and city/municipal mayors or an affidavit stating the
dates and places of posting duly executed by the
responsible officer or his duly authorized
representative.

4. As to membership in the Institutional Biosafety Committee

PART I ARTICLE III. ADMINISTRATIVE

GENERAL PROVISIONS
FRAMEWORK
Section 1
xxxx
Definition of Terms
Section 6. Institutional Biosafety Committee
xxxx
The company or institution applying for and granted
L. "IBC" means the Institutional Biosafety Committee permits under this Circular shall constitute an IBC
established by an applicant in preparation for the prior to the contained use, confined test, or field trial
field testing of a regulated article and whose of a regulated article. The membership of the IBC
membership has been approved by BPI. The JBC shall shall be approved by the DOST-BC for contained use
be responsible for the initial evaluation of the risk or confined test, or by the DA-BC for field trial. The
assessment and risk management strategies of the IBC is responsible for the conduct of the risk
applicant for field testing. It shall be composed of at assessment and preparation of risk management
least five (5) members, three (3) of whom shall be strategies of the applicant for contained use,
designated as "scientist-members" who shall possess confined test, or field trial. It shall make sure that the
scientific and technological knowledge and expertise environment and human health are safeguarded in
sufficient to enable them to evaluate and monitor the conduct of any activity involving regulated
properly any work of the applicant relating to the articles.
field testing of a regulated article. The other
members, who shall be designated as "community The IBC shall be composed of at least five (5)
representatives", shall not be affiliated with the members, three (3) of whom shall be designated, as
applicant apart from being members of its IBC and scientist-members and two (2) members shall be
shall be in a position to represent the interests of the community representatives. All scientist-members
communities where the field testing is to be must possess scientific or technological knowledge
conducted. For the avoidance of doubt, NCBP shall and expertise sufficient to enable them to property
be responsible for approving the membership of the evaluate and monitor any work involving regulated
IBC for contained use of a regulated article. articles conducted by the applicant.

x x x x (Underscoring supplied) The community regresentative must not be affiliated

with the applicant, and must be in a position to
regresent the interests of the communities where
the activities are to be conducted. One of the
community regresentatives shall be an elected
official of the LGU. The other community
representative shall be selected from the residents
who are members of the Civil Society Organizations
represented in the Local Poverty Reduction Action
Team, pursuant to DILG Memorandum Circular No.
2015-45. For multi-location trials, community
representatives of the IBC shall be designated per
site. x x x. (Underscoring supplied)

5. As to the composition and qualifications of the members of the Scientific and Technical Review

Panel

PART I ARTICLE III. ADMINISTRATIVE FRAMEWORK

GENERAL PROVISIONS
xxxx
Section 1
Section 7. Scientific and Technical Review Panel
Definition of Terms (STRP) The DA shall create a Scientific and Technical
Review Panel composed of a pool of non-DA
xxxx scientists with expertise in the evaluation of the
potential risks of regulated articles to the
EE. "STRP" means the Scientific and Technical Review environment and health. x x x
Panel created by BPI as an advisory body, composed
of at least three (3) reputable and independent xxxx
scientists who shall not be employees of the
Department and who have the relevant professional The DA shall select scientists/experts in the STRP,
background necessary to evaluate the potential risks who shall meet the following qualifications:
of the proposed activity to human health and the
environment based on available scientific and A. Must not be an official, staff or employee of the
technical information. DA or any of its attached agencies;

x x x x (Underscoring supplied) B. Must not be directly or indirectly employed or

engaged by a company or institution with pending
applications for permits covered by this Circular;

C. Possess technical expertise in at least one of the

following fields: food and nutrition; toxicology,
ecology, crop protection, environmental science,
molecular biology and biotechnology, genetics, plant
breeding, animal nutrition; and

D. Well-respected in the scientific community as

evidenced by positions held in science-based
organizations, awards and recognitions, publications
in local and international peer-reviewed scientific
 journals.

x x x x (Underscoring supplied)

Based on the foregoing, it is apparent that the regulatory framework now applicable in conducting risk assessment in matters
involving the research, development, handling, movement, and release into the environment of genetically modified plant and plant
products derived from the use of modem biotechnology is substantially different from that which was applied to the subject field
trials. In this regard, it cannot be said that the present case is one capable of repetition yet evading review.

The essence of cases capable of repetition yet evading review was succinctly explained by the Court in Belgica v. Ochoa, Jr.,106 where
the constitutionality of the Executive Department's lump-sum, discretionary funds under the 2013 General Appropriations Act,
known as the Priority Development Assistance Fund (PDAF), was assailed. In that case, the Court rejected the view that the issues
related thereto had been rendered moot and academic by the reforms undertaken by the Executive Department and former
President Benigno Simeon S. Aquino III's declaration that he had already "abolished the PDAF." Citing the historical evolution of the
ubiquitous Pork Barrel System, which was the source of the PDAF, and the fact that it has always been incorporated in the national
budget which is enacted annually, the Court ruled that it is one capable of repetition yet evading review, thus:

Finally, the application of the fourth exception [to the rule on mootness] is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. The relevance of the issues before
the Court does not cease with the passage of a "PDAF-free budget for 2014." The evolution of the "Pork Barrel System," by its
multifarious iterations throughout the course of history, lends a semblance of truth to petitioners' claim that "the same dog will
just resurface wearing a different collar." In Sanlakas v. Executive Secretary,  the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception in order "[t]o prevent similar questions
from re-emerging." The situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and hence; must not evade
judicial review.107 (Emphases supplied)

Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF are wanting herein. To reiterate, the issues
in these cases involve factual considerations which are peculiar only to the controversy at hand since the petition for Writ
of Kalikasan  is specific to the field testing of Bt talong and does not involve other GMOs.

At this point, the Court discerns that there are two (2) factors to be considered before a case is deemed one capable of repetition
yet evading review: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and
(2) there was a reasonable expectation that the same complaining party would be subjected to the same action.

Here, respondents cannot claim that the duration of the subject field tests was too short to be fully litigated. It must be emphasized
that the Biosafety Permits for the subject field tests were issued on March 16, 2010 and June 28, 2010, and were valid for two (2)
years. However, as aptly pointed out by Justice Leonen, respondents filed their petition for Writ of Kalikasan only on April 26, 2012 -
just a few months before the Biosafety Permits expired and when the field testing activities were already over. 108 Obviously,
therefore, the cessation of the subject field tests before the case could be resolved was due to respondents' own inaction.

Moreover, the situation respondents complain of is not susceptible' to repetition. As discussed above, DAO 08-2002 has already
been superseded by JDC 01-2016. Hence, future applications for field testing will be governed by JDC 01-2016 which, as illustrated,
adopts a regulatory framework that is substantially different from that of DAO 08-2002.

Therefore, it was improper for the Court to resolve the merits of the case which had become moot in view of the absence of any
valid exceptions to the rule on mootness, and to thereupon rule on the objections against the validity and consequently nullify DAO
08-2002 under the premises of the precautionary principle.

In fact, in relation to the latter, it is observed that the Court should not have even delved into the constitutionality of DAO 08-2002
as it was merely collaterally challenged by respondents, based on the constitutional precepts of the people's rights to infonnation
on matters of public concern, to public participation, to a balanced and healthful ecology, and to health. 109 A cursory perusal of the
petition for Writ of Kalikasan  filed by respondents on April 26, 2012 before the Court shows that they essentially assail herein
petitioners' failure to: (a)  fully infom1 the people regarding the health, environment, and other hazards involved; 110 and (b)  conduct
any valid risk assessment before conducting the field trial. 111 However, while the provisions of DAO 08-2002 were averred to be
inadequate to protect (a)  the constitutional right of the people to a balanced and healthful ecology since "said regulation failed,
among others, to anticipate 'the public implications caused by the importation of GMOs in the Philippines"'; 112and (b) "the people
from the potential harm these genetically modified plants and genetically modified organisms may cause human health and the
environment, [and] thus, x x x fall short of Constitutional compliance," 113 respondents merely prayed for its amendment, as well as
that of the NBF, to define or incorporate "an independent, transparent, and comprehensive scientific and socio-economic risk
assessment, public information, consultation, and participation, and providing for their effective implementation, in accord with
international safety standards[.]"114 This attempt to assail the constitutionality of the public info1mation and consultation
requirements under DAO 08-2002 and the NBF constitutes a collateral attack on the said provisions of law that runs afoul of the
wdlsettled rule that the constitutionality of a statute cannot be collaterally attacked as constitutionality issues must be pleaded
directly and not collaterally.115 Verily, the policy of the courts is to avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid, absent a clear and unmistakable showing to the contrary, in deference to the doctrine of
separation of powers. This means that the measure had first been carefuliy studied by the executive department and found to be in
accord with the Constitution before it was finally enacted and approved. 116

All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of the Biosafoty Permits and the
completion of the field trials subject of these cases, and with none of the exceptions to the mootness principle properly attending,
the Court grants the instant motions for reconsideration and hereby dismisses the aforesaid petition. With this pronouncement, no
discussion on the substantive merits of the same should be made.

WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated December 8, 2015 of the Court, which affirmed
with modification the Decision dated May 17, 2013 and the Resolution dated September 20, 2013 of the Court of Appeals in CA-G.R.
SP No. 00013, is hereby SET ASIDE for the reasons above-explained. A new one is ENTERED DISMISSING the Petition for Writ of
Continuing Mandamus  and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order (TEPO)
filed by respondents Greenpeace Southeast Asia (Philippines), Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura, and others
on the ground of mootness.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 207257               February 3, 2015

HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), Petitioner,
vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO
SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q.
RODRIGUEZ, JOHN CARLO DELOS REYES, Respondents.

x-----------------------x

G.R. No. 207276

REDONDO PENINSULA ENERGY, INC., Petitioner,

vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO
SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q.
RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN AUTHORITY, Respondents.

x-----------------------x

G.R. No. 207282

HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON.
RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ,
JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS,
GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET AL., Petitioners,
vs.
RAMON JESUS P. PAJE in his capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC
BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., Respondents.

x-----------------------x

G.R. No. 207366

SUBIC BAY METROPOLITAN AUTHORITY, Petitioner,

vs.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, HON.
ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANOGARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELHPERALTA,
ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO,
MARIO ESQUILLO, ELLE·LATINAZO, EV ANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, in his
capacity as SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO PENINSULA ENERGY,
INC., Respondents.

DECISION

DEL CASTILLO, J.:

Before this Court are consolidated Petitions for Review on Certiorari 1 assailing the Decision2 dated January 30, 2013 and the
Resolution3 dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon.
Ramon Jesus P. Paje, et al."

Factual Antecedents

In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government agency organized and established under Republic Act
No. (RA) 7227,4 and Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of Understanding (MOU) expressing their
intention to build a power plant in Subic Bay which would supply reliable and affordable power to Subic Bay Industrial Park (SBIP). 5

On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build and operatea coal-fired power
plant.6 In the said MOU, TCC identified 20 hectares of land at SitioNaglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the
suitable area for the project and another site of approximately 10 hectares tobe used as an ash pond. 7 TCC intends to lease the
property from SBMA for a term of 50 years with rent fixed at$3.50 per square meter, payable in 10 equal 5-year installments. 8

On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in
favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of TCC, 9 for the construction, installation,and operation
of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore. 10

On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP
Energy),11 a corporation duly organized and existing under the laws of the Philippines with the primary purpose of building, owning,
and operating powerplants in the Philippines, among others. 12 Accordingly, an Addendum to the said MOU was executed by SBMA
and RP Energy.13

RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for the proposed coal-fired
power plant and to assist RP Energy in applying for the issuance ofan ECC from the Department of Environment and Natural
Resources (DENR).14 On August 27, 2008, the Sangguniang Panglungsodof Olongapo City issued Resolution No. 131, Series of 2008,
expressing the city government’s objection to the coal-fired power plant as an energy source and urging the proponent to consider
safer alternative sources ofenergy for Subic Bay. 15

On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-
fired power plant.16

Sometime thereafter, RP Energy decided to include additional components in its proposed coal-fired power plant. Due to the
changes in the project design, which involved the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline,
raw water collection system, drainage channel improvement, and a 230kV double-circuit transmission line, 17 RP Energy requested
the DENR Environmental Management Bureau(DENR-EMB) to amend its ECC. 18 In support of its request, RP Energy submitted to the
DENR-EMBan Environmental Performance Report and Management Plan (EPRMP), which was prepared by GHD. 19

On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement (LDA) over a 380,004.456-square meter
parcel of land to be used for building and operating the coal-fired power plant. 20

On July 8, 2010, the DENR-EMBissued an amended ECC (first amendment) allowing the inclusion ofadditional components, among
others.21

Several months later, RP Energy again requested the DENR-EMB to amend the ECC. 22 Instead of constructing a 2x150-MW coal-fired
power plant, as originally planned, it now sought toconstruct a 1x300-MWcoal-fired power plant. 23 In support of its request, RP
Energy submitted a Project Description Report (PDR) to the DENR-EMB. 24
On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second amendment). 25

On August 1, 2011, the Sangguniang Panglalawiganof Zambales issued Resolution No. 2011-149, opposing the establishment of a
coal-fired thermal power plant at SitioNaglatore, Brgy. Cawag, Subic, Zambales. 26

On August 11, 2011, the Liga ng mga Barangayof Olongapo City issued Resolution No. 12, Series of 2011, expressing its strong
objection to the coal-fired power plant as an energy source. 27

On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano, Hon. Emerenciana A. De Jesus,
Clemente G. Bautista, Jr., Hon. Rolen C. Paulino,Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah
Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca Magdaraog, Rubelh
Peralta, Alex Corpus Hermoso,Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo,
Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ of
Kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as Secretary of the DENR. 28

On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan; and (2) refer the case to the CA for hearing and
reception of evidence and rendition of judgment.29 While the case was pending, RP Energy applied for another amendment to its
ECC (third amendment) and submitted another EPRMP to the DENR-EMB, proposing the construction and operation of a 2x300-MW
coal-fired power plant.30

On September 11, 2012, the Petition for Writ of Kalikasanwas docketed as CA-G.R. SP No. 00015 and raffled to the Fifteenth Division
of the CA.31 In the Petition, the Casiño Group alleged, among others, that the power plant project would cause grave environmental
damage;32 that it would adversely affect the health of the residents of the municipalities of Subic,Zambales, Morong, Hermosa, and
the City of Olongapo;33 that the ECC was issued and the LDA entered into without the prior approval of the concerned sanggunians
as required under Sections 26 and 27 of the Local Government Code (LGC); 34 that the LDA was entered into without securing a prior
certification from the National Commission on Indigenous Peoples (NCIP) as required under Section 59 of RA8371 or the Indigenous
Peoples’ Rights Act of 1997 (IPRA Law); 35 that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which
allowsamendments of ECCs is ultra viresbecause the DENR has no authority to decide on requests for amendments of previously
issued ECCs in the absence of a new EIS;36 and that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s
ECC are null and void.37

On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their respective counsels, appeared
except for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle
Latinazo,Evangeline Q. Rodriguez, and the SBMA. 38 The matters taken up during the preliminary conference were embodied in the
CA’s Resolution dated November 5, 2012, to wit:

I. ISSUES

A. Petitioners (Casiño Group)

1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-
Fired Thermal Power Plant Project (‘Power Plant,’ x x x ) and its amendment to 1x300 MW Power Plant, and the Lease and
Development Agreement between SBMA and RP Energy complied with the Certification Precondition as required under
Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x);

2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without prior
consultation with and approval of the concerned local government units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of
Republic Act No. 7160 or the Local Government Code;

3. Whether x x x Section 8.3 of DENRAdministrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x x ) providing for the
amendment of an ECC is null and void for being ultra vires; and

4. Whether x x x the amendment of RPEnergy’s ECC under Section 8.3 of DAO No. 2003-30 is null and void.

B. Respondent RP Energy
 1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;

1.1 Whether x x x the same is valid until annulled;

2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300 MW
Power Plant;

2.1 Whether x x x the instant Petition is proper;

3. Whether x x x RP Energycomplied with all the procedures/requirements for the issuance of the DENR ECC and its
amendment;

3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable
in the instant case;

4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is necessaryfor the issuance of
the DENR ECC and its amendments, and what constitutes LGU approval;

5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;

5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal
pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems;
and

6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of properverification
and certification of nonforum shopping with respect to some petitioners.

C. Respondent DENR Secretary Paje

1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with Section
59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;

2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and

3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.

II. ADMISSIONS/DENIALS

Petitioners, through Atty. Ridon, admittedall the allegations in RP Energy’s Verified Return, except the following:

1. paragraphs 1.4 to 1.7;

2. paragraphs 1.29 to 1.32; and

3. paragraphs 1.33 to 1.37.

Petitioners made no specific denial withrespect to the allegations of DENR Secretary Paje’s Verified Return. x x x

Respondent RP Energy proposed the following stipulations, which were all admitted by petitioners, through Atty. Ridon, viz:

1. The 1x300 MW Power Plant is not yet operational;

2. At present, there is no environmental damage;

3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone; and
 4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of DAO No. 2003-30.

Public respondent DENR Secretary Paje did not propose any matter for stipulation. 39

Thereafter, trial ensued.

The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term representativeof the KabataanPartylist in
the House of Representatives;40 (2) Alex C. Hermoso, the convenor of the Zambales-Olongapo City Civil Society Network,a director of
the PREDA41 Foundation, and a member of the Zambales Chapter of the Kaya NatinMovement and the Zambales Chapter of the
People Power Volunteers for Reform;42 and (3) Ramon Lacbain, the ViceGovernor of the Province of Zambales. 43

RP Energy presented five witnesses,namely: (1) JunisseP. Mercado (Ms. Mercado), an employee of GHD and the Project Directorof
ongoing projects for RP Energy regarding the proposed power plant project; 44 (2) Juha Sarkki (Engr. Sarkki), a Master of Science
degree holder inChemical Engineering;45 (3) Henry K. Wong, a degree holder of Bachelor of Science Major in Mechanical Engineering
from Worcester Polytechnic Institute;46 (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer,
and Environmental Planner in the Philippines; 47 and (5) David C. Evangelista (Mr. Evangelista), a Business Development Analyst
working for RP Energy.48

SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty. Rodriguez). 49

The DENR, however, presented no evidence.50

Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection with RP Energy’s application for the
2x300-MW coal-fired power plant.51

On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third amendment to its ECC, approving the
construction and operation of a 2x300-MW coal-fired power plant, among others. 52

Ruling of the Court of Appeals

On January 30, 2013, the CA rendereda Decision denying the privilege of the writ of kalikasanand the application for an environment
protection order due to the failure of the Casiño Group to prove that its constitutional right to a balanced and healthful ecology was
violated or threatened.53 The CA likewise found no reason to nullify Section 8.3 ofDAO No. 2003-30. It said that the provision was not
ultra vires,as the express power of the Secretary of the DENR, the Director and Regional Directors of the EMB to issue an ECC
impliedly includes the incidental power to amend the same. 54 In any case, the CA ruled that the validity of the said section could not
becollaterally attacked in a petition for a writ of kalikasan. 55

Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-compliance with Section 59 of the IPRA
Law56 and Sections 26 and 27 of the LGC57 and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix his
signature in the Sworn Statement of Full Responsibility, which is an integral part of the ECC. 58 Also declared invalid were the ECC first
amendment dated July 8, 2010 and the ECC second amendment dated May 26, 2011 in view of the failure of RP Energy to comply
with the restrictions set forth in the ECC, which specifically require that "any expansion of the project beyond the project description
or any change in the activity x x x shall be subject to a new Environmental Impact Assessment." 59 However, as to the ECC third
amendment dated November 15, 2012, the CA decided not to rule on its validity since it was not raised as an issue during the
preliminary conference.60

The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior consultation and approval of
all the sanggunians concerned as required under Sections 26 and 27 of the LGC, 61 and in violation of Section 59, Chapter VIII ofthe
IPRA Law, which enjoins all departments and other governmental agencies from granting any lease without a prior certification that
the area affected does not overlap with any ancestral domain. 62 The CA noted that no CNO was secured from the NCIP prior to the
execution of the LDA,63 and that the CNO dated October 31, 2012 was secured during the pendency of the case and was issued in
connection with RP Energy’s application for a 2x300-MW coalfired power plant. 64

Thus, the CA disposed of the case in this wise:

WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of the writ of kalikasan and the application
for an environmental protection order. The prayer to declare the nullity of Section 8.3 of the DENR Administrative Order No. 2003-
30 for being ultra vires is DENIED; and the following are all declared INVALID:

1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22 December 2008 issued in favor of
respondent Redondo Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr. of the Department of Environment and
Natural Resources;

2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May 2011, both issued in favor
ofrespondent Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T. Cunaof the Department of Environment
and Natural Resources, Environmental Management Bureau; and

3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents Subic Bay Metropolitan
Authority and Redondo Peninsula Energy, Inc. involving a parcel of land consisting of ₱380,004.456 square meters.

SO ORDERED.65

The DENR and SBMA separately moved for reconsideration. 66 RP Energy filed a Motion for Partial Reconsideration, 67 attaching
thereto a signed Statement of Accountability. 68 The Casiño Group, on the other hand, filed Omnibus Motions for Clarification and
Reconsideration.69

On May 22, 2013, the CAissued a Resolution70 denying the aforesaid motions for lack of merit. The CA opined that the reliefs it
granted in its Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for Environmental Cases as the reliefs
enumerated therein are broad, comprehensive, and nonexclusive. 71 In fact, paragraph (e) of the saidprovision allows the granting of
"such other reliefs" in consonance with the objective, purpose, and intent of the Rules. 72 SBMA’s contention that the stoppage of a
project for non-compliance with Section 59 of the IPRA Law may only be done by the indigenous cultural communities or indigenous
peoples was also brushed aside by the CA as the Casiño Group did not file a case under the IPRA Law but a Petition for a Writ of
Kalikasan, which is available to all natural or juridical persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened to be violated.73 As to RP Energy’s belated submission of a signed Statement of Accountability, the CA gaveno
weight and credenceto it as the belated submission of such document, long after the presentation of evidence of the parties had
been terminated, is not in accord with the rules of fair play. 74 Neither was the CA swayed by the argument that the omitted signature
of Luis Miguel Aboitiz is a mere formal defect, which does not affect the validity of the entire document. 75 The dispositive portion of
the Resolution reads: WHEREFORE,premises considered, respondents Subic Bay Metropolitan Authority’s Motion for
Reconsideration dated 18 February 2013, Department of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s
Motion for Reconsideration dated 19 February 2013, and Redondo Peninsula Energy, Inc.’s Motion for Partial Reconsideration dated
22 February 2013, as well as petitioners’ OmnibusMotions for Clarification and Reconsideration dated 25 February 2013,are all
DENIED for lack of merit.

SO ORDERED.76

Unsatisfied, the parties appealed to this Court.

The Casiño Group’s arguments

The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as it was able to prove that the operation of the power
plant would cause environmental damage and pollution, and that thiswould adversely affect the residents of the provinces of Bataan
and Zambales, particularly the municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites as basis RP Energy’s EIS,
which allegedly admits that acid rain may occur in the combustion of coal; 77 that the incidence of asthma attacks among residents in
the vicinity of the project site may increasedue to exposure to suspended particles from plant operations; 78 and that increased sulfur
oxides (SOx) and nitrogen oxides (NOx) emissions may occur during plant operations. 79 It also claims that when the SBMA conducted
Social Acceptability Policy Consultations with different stakeholders on the proposed power plant, the results indicated that the
overall persuasion of the participants was a clear aversion to the project due to environmental, health, economic and socio-cultural
concerns.80 Finally, it contends that the ECC third amendment should also be nullified for failure to comply with the procedures and
requirements for the issuance of the ECC. 81

The DENR’s arguments

The DENR imputes error on the CAin invalidating the ECC and its amendments, arguing that the determination of the validity of the
ECC as well as its amendments is beyond the scope of a Petition for a Writ of Kalikasan. 82 And even if it is within the scope, there is
no reason to invalidate the ECC and its amendments as these were issued in accordance with DAO No. 2003-30. 83 The DENR also
insists that contrary to the view of the CA, a new EIS was no longer necessary since the first EIS was still within the validity period
when the first amendment was requested, and that this is precisely the reason RP Energy was only required to submit an EPRMP in
support of its application for the first amendment.84 As to the second amendment, the DENR-EMB only required RP Energy to submit
documents to support the proposed revision considering that the change in configuration of the power plant project, from
2x150MW to 1x300MW, was not substantial.85 Furthermore, the DENR argues that no permits, licenses, and/or clearances from
other government agencies are required in the processing and approval of the ECC. 86 Thus, non-compliance with Sections 26 and 27
of the LGC as well as Section 59 ofthe IPRA Law is not a ground to invalidate the ECC and its amendments. 87 The DENR further posits
that the ECC is not a concession, permit, or license but is a document certifying that the proponent has complied with all the
requirements of the EIS System and has committed to implement the approved Environmental Management Plan. 88 The DENR
invokes substantial justice so that the belatedly submitted certified true copy of the ECC containing the signature of Mr. Aboitiz on
the Statement of Accountability may be accepted and accorded weight and credence. 89

SBMA’s arguments

For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it should not have invalidated the LDA and that in doing
so, the CA acted beyond its powers.90 SBMA likewise puts in issue the legal capacity of the Casiño Group to impugn the validity of the
LDA91 and its failure to exhaust administrative remedies. 92 In any case, SBMA contends that there is no legal basis to invalidate the
LDA as prior consultation under Sections 26 and 27 of the LGC is not required in this case considering that the area is within the
SBFZ.93 Under RA 7227, it is the SBMA which has exclusive jurisdiction over projects and leases within the SBFZ and that in case of
conflict between the LGC and RA 7227, it is the latter, a special law, which must prevail. 94 Moreover, the lack of prior certification
from the NCIP is alsonot a ground to invalidate a contract. 95 If at all, the only effect of non-compliance with the said requirement
under Section 59 of the IPRA Law is the stoppage or suspension of the project. 96 Besides, the subsequent issuance of a CNO has
cured any legal defect found in the LDA.97

RP Energy’s arguments

RP Energy questions the proprietyof the reliefs granted by the CA considering that it did not issue a writ of kalikasanin favor of the
Casiño Group.98 RP Energy is of the view that unless a writ of kalikasanis issued, the CA has no power to grant the reliefs prayed for in
the Petition.99 And even if it does, the reliefs are limited to those enumerated in Section 15, Rule 7 of the Rules of Procedure for
Environmental Cases and that the phrase "such other reliefs" in paragraph (e) should be limited only to those of the same class or
general nature as the four other reliefs enumerated. 100 As to the validity of the LDA, the ECC and its amendments, the arguments of
RP Energy are basically the same arguments interposed by SBMA and the DENR. RP Energy maintains that the ECC and its
amendments were obtained in compliance with the DENR rules and regulations; 101 that a CNO is not necessary in the execution of
anLDA and in the issuance of the ECC and its amendments; 102 and that prior approval of the local governments, which may be
affected by the project, are not required because under RA 7227, the decision of the SBMA shall prevail in matters affecting the
Subic Special Economic Zone (SSEZ), except in matters involving defense and security. 103 RP Energy also raises the issue of non-
exhaustion of administrative remedies on the part of the Casiño Group. 104 Preliminaries

This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan. It presents some interesting
questions about law and justice in the context of environmental cases, which we will tackle in the main body of this Decision.

But we shall first address some preliminary matters, in view of the manner by which the appellate court disposed of this case.

The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for Environmental Cases, 106 was issued by the Court
pursuant to its power to promulgate rules for the protection and enforcement of constitutional rights, 107 in particular, the
individual’s rightto a balanced and healthful ecology. 108 Section 1 of Rule 7 provides:

Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s
organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency,
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 writ is categorized as a special civil action and was, thus, conceptualized as an extraordinary remedy,which aims to provide
judicial relief from threatened or actual violation/s of the constitutional right to a balanced and healthful ecology of a magnitude or
degree of damage that transcends political and territorial boundaries. 109 It is intended "to provide a strongerdefense for
environmental rights through judicial efforts where institutional arrangements of enforcement, implementation and legislation have
fallen short"110 and seeks "to address the potentially exponential nature of large-scale ecological threats." 111

Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy: (1) there is an actual or
threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from
an unlawful act or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation
involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property ofinhabitants in two
or more cities or provinces.

Expectedly, the Rules do not definethe exact nature or degree of environmental damage but only that it must be sufficientlygrave, in
terms of the territorial scope of such damage, so as tocall for the grant ofthis extraordinary remedy. The gravity ofenvironmental
damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis.

If the petitioner successfully proves the foregoing requisites, the court shall render judgment granting the privilege of the writ of
kalikasan. Otherwise, the petition shall be denied. If the petition is granted, the court may grant the reliefs provided for under
Section 15of Rule 7, to wit: Section 15. Judgment.- Within sixty (60) daysfrom 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.

It must be noted, however,that the above enumerated reliefs are non-exhaustive. The reliefs that may be granted under the writ are
broad, comprehensive and non-exclusive.112

Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs granted by the appellate court,
i.e.invalidating the ECC and its amendments, are improper because it had deniedthe Petition for Writ of Kalikasanupon a finding that
the Casiño Group failed to prove the alleged environmental damage, actual or threatened, contemplated under the Rules.

Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the appellate court have granted the
Petition for Writ of Kalikasanon the ground of the invalidity of the ECC for failure to comply with certain laws and rules?

This question is the starting point for setting up the framework of analysis which should govern writ of kalikasan cases.

In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations, relative to the actual or threatened violation of the
constitutional right to a balanced and healthful ecology, may be grouped into two.

The first set of allegations deals withthe actual environmental damage that will occur if the power plant project isimplemented. The
Casiño Group claims that the construction and operation of the power plant will result in (1) thermal pollution of coastal waters, (2)
air pollution due to dust and combustion gases, (3) water pollution from toxic coal combustion waste, and (4) acid deposition in
aquatic and terrestrial ecosystems, which will adversely affect the residents of the Provinces of Bataan and Zambales, particularly
the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.

The second set of allegations deals with the failureto comply with certain laws and rules governing or relating to the issuance ofan
ECC and amendments thereto. The Casiño Group claims that the ECC was issued in violation of (1) the DENR rules on the issuance
and amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual for DAO 2003-30 (Revised Manual), (2)
Section 59 of the IPRA Law,and (3) Sections 26 and 27 of the LGC. In addition, it claims that the LDA entered into between SBMA and
RP Energy violated Section 59 of the IPRA Law.

As to the first set of allegations, involving actual damage to the environment, it is not difficult to discern that, if they are proven,
then the Petition for Writ of Kalikasan could conceivably be granted.

However, as to the second set of allegations, a nuanced approach is warranted. The power of the courts to nullify an ECC existed
even prior to the promulgation of the Rules on the Writ of Kalikasanfor judicial review of the acts of administrative agencies or
bodies has long been recognized114 subject, of course, to the doctrine of exhaustion of administrative remedies. 115

But the issue presented before us is nota simple case of reviewing the acts of an administrative agency, the DENR, which issued the
ECC and its amendments. The challenge to the validity ofthe ECC was raised in the context of a writ of kalikasancase. The question
then is, can the validity of an ECC be challenged viaa writ of kalikasan?

We answer in the affirmative subject to certain qualifications.

As earlier noted, the writ of kalikasanis principally predicated on an actual or threatened violation of the constitutional right to a
balanced and healthful ecology, which involves environmental damage of a magnitude that transcends political and territorial
boundaries. A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must not
only allege and prove such defects or irregularities, but mustalso provide a causal link or, at least, a reasonable connection between
the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the constitutional right to a balanced
and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the
action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. This must be so
ifwe are to preserve the noble and laudable purposes of the writ against those who seek to abuse it.

An example of a defect or an irregularity in the issuance of an ECC, which could conceivably warrant the granting of the
extraordinary remedy of the writ of kalikasan, is a case where there are serious and substantial misrepresentations or fraud in the
application for the ECC, which, if not immediately nullified, would cause actual negative environmental impacts of the magnitude
contemplated under the Rules, because the government agenciesand LGUs, with the final authority to implement the project, may
subsequently rely on such substantially defective or fraudulent ECC in approving the implementation of the project.

To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to merely allege such defects or
irregularities, but to show a causal link or reasonable connection with the environmental damage of the magnitude contemplated
under the Rules. In the case at bar, no such causal link or reasonable connection was shown or even attempted relative to the
aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in the issuance of the ECC. This would
havebeen sufficient reason to disallow the resolution of such issues in a writ of kalikasan case.

However, inasmuch as this is the first time that we lay down this principle, we have liberally examined the alleged defects or
irregularities in the issuance of the ECC and find that there is only one group of allegations, relative to the ECC, that can be
reasonably connected to anenvironmental damageof the magnitude contemplated under the Rules. This is withrespect to the
allegation that there was no environmental impact assessment relative to the first and second amendments to the subject ECC. If
this were true, then the implementation of the project can conceivably actually violate or threaten to violate the right to a healthful
and balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of such an issue could conceivably
be resolved in a writ of kalikasan case provided that the case does not violate, or is anexception to the doctrine of exhaustion of
administrative remedies and primary jurisdiction.116

As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA, likewise, violated the IPRA Law, we
find the same not to be within the coverage of the writ of kalikasanbecause, assuming there was non-compliance therewith, no
reasonable connection can be made to an actual or threatened violation of the right to a balanced and healthful ecology of the
magnitude contemplated under the Rules.
To elaborate, the alleged lackof approval of the concerned sanggunians over the subject project would not lead toor is not
reasonably connected with environmental damage but, rather, it is an affront to the local autonomy of LGUs. Similarly, the alleged
lack of a certificate precondition that the project site does not overlap with an ancestral domain would not result inor is not
reasonably connected with environmental damage but, rather, it is an impairment of the right of Indigenous Cultural
Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged violationscould be the subject of appropriate
remedies before the proper administrative bodies (like the NCIP) or a separate action to compel compliance before the courts, as
the case may be. However, the writ of kalikasan would not be the appropriate remedy to address and resolve such issues.

Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those which are not, commingled as it were
here, because of the exceptional character of this case. We take judicial notice of the looming power crisis that our nation faces.
Thus, the resolution of all the issues in this case is of utmost urgency and necessity in order to finally determine the fate of the
project center of this controversy. If we were to resolve only the issues proper in a writ of kalikasancase and dismiss those not
proper therefor, that will leave such unresolved issues open to another round of protracted litigation. In any case, we find the
records sufficient to resolve all the issues presented herein. We also rule that, due to the extreme urgency of the matter at hand, the
present case is an exception to the doctrine of exhaustion of administrative remedies. 117 As we have often ruled, in exceptional
cases, we can suspend the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State
interests vital to the life of our nation.

Issues

In view of the foregoing, we shall resolve the following issues:

1. Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave
environmental damage.

1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and combustion gases, water
pollution from toxic coal combustion waste, and acid deposition to aquatic and terrestrial ecosystems that will
becaused by the project.

1.2. The alleged negative environmental assessment of the project by experts in a report generated during the
social acceptability consultations.

1.3. The alleged admissions of grave environmental damage in the EIS itself of the project.

2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz, as representative of RP Energy, in the
Statement of Accountability of the ECC.

3. Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact
assessment (EIA) because of the utilization of inappropriate EIA documents.

4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the issuanceof an ECC and
the lack of its prior issuance rendered the ECC invalid.

5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the consummation of the
Lease and Development Agreement (LDA) between SBMA and RPEnergy and the lack of its prior issuance rendered the LDA
invalid.

6. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the concerned
sanggunianrequirement) is necessary prior to the implementation of the power plant project.

7. Whether the validity of the third amendment to the ECC can be resolved in this case.

Ruling

The parties to this case appealed from the decision of the appellate court pursuant to Section 16, Rule7 of the Rules of Procedure for
Environmental Cases, viz:
Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse judgment or denialof motion for reconsideration,
any party may appeal to the Supreme Court under Rule45 of the Rules of Court. The appeal may raise questions of fact. (Emphasis
supplied)

It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on appeal, questions of fact— and, thus,
constitutes an exception to Rule 45 of the Rules of Court— because ofthe extraordinary nature of the circumstances surrounding the
issuance of a writ of kalikasan.118 Thus, we shall review both questions of law and fact in resolving the issues presented in this case.

We now rule on the above-mentioned issues in detail.

I.

Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave environmental
damage.

The alleged thermal pollution of coastal

waters, air pollution due to dust and
combustion gases, water pollution from
toxic coal combustion waste, and acid
deposition in aquatic and terrestrial
ecosystems that willbe caused by the
project.

As previously noted, the Casiño Group alleged that the construction and operation of the power plant shall adversely affect the
residents of the Provinces of Bataan and Zambales, particularly, the Municipalities of Subic, Morong and Hermosa, and the City of
Olongapo, as well as the sensitive ecological balance of the area. Their claims of ecological damage may be summarized as follows:

1. Thermal pollution of coastal waters. Due to the discharge of heated water from the operation of the plant, they claim
that the temperature of the affected bodies of water will rise significantly. This will have adverse effects on aquatic
organisms. It will also cause the depletion of oxygen in the water. RP Energy claims that there will beno more than a 3°C
increase in water temperature but the Casiño Group claims that a 1°C to 2°C rise can already affect the metabolism and
other biological functions of aquatic organisms such asmortality rate and reproduction.

2. Air pollution due to dust and combustion gases. While the Casiño Group admits that Circulating Fluidized Bed (CFB) Coal
technology, which will be used in the power plant, is a clean technology because it reduces the emission of toxic gases, it
claims that volatile organic compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted under the
CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. Carbon monoxide, a poisonous
gas, and nitrous oxide, a lethal global warming gas, will also be produced.

3. Water pollution from toxic coal combustion waste. The waste from coal combustion or the residues from burning pose
serious environmental risk because they are toxic and may cause cancer and birth defects. Their release to nearby bodies of
water will be a threatto the marine ecosystem of Subic Bay. The project is located in a flood-prone area and is near three
prominent seismic faults as identified by Philippine Institute of Volcanology and Seismology. The construction of an ash
pond in an area susceptible to flooding and earthquake also undermines SBMA’s duty to prioritize the preservation of the
water quality in Subic Bay.

4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 tons of nitrous oxides and 886
tons of sulfur dioxide per year. These oxides are responsible for acid deposition. Acid deposition directly impacts aquatic
ecosystems. It is toxic to fish and other aquatic animals. It will also damage the forests near Subic Bay as well as the wildlife
therein. This will threaten the stability of the biological diversity of the Subic Bay Freeport which was declared as one of the
ten priority sites among the protected areas in the Philippines and the Subic Watershed and Forest Reserve. This will also
have an adverse effect on tourism.119

In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to prove the above allegations.

We agree with the appellate court.

Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB technology or on environmental matters.
These witnesses even admitted on cross-examination that theyare not competent to testify on the environmental impact of the
subject project. What is wanting in their testimonies is their technical knowledgeof the project design/implementation or some
other aspects of the project, even those not requiring expertknowledge, vis-à-vis the significant negative environmental impacts
which the Casiño Group alleged will occur. Clearly, the Casiño Group failed to carry the onusof proving the alleged significant
negative environmental impacts of the project. In comparison, RP Energy presented several experts to refute the allegations of the
Casiño Group.

As aptly and extensively discussed by the appellate court:

Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of whom are not experts on the CFB
technology or even on environmental matters. Petitioners did not present any witness from Morong or Hermosa. Palatino, a former
freelance writer and now a Congressman representing the Kabataan Partylist, with a degree of BS Education major in Social Studies,
admitted that he is not a technical expert. Hermoso, a Director of the PREDA foundation which is allegedly involved on
environmental concerns, and a member of Greenpeace, is not an expert on the matter subject of this case. He is a graduate of BS
Sociology and a practicing business director involved in social development and social welfare services. Lacbain, incumbent
ViceGovernor of the Province of Zambales, anaccounting graduate with a Master in Public Administration, was a former
BancoFilipino teller, entertainment manager, disco manager, marketing manager and college instructor, and is also not an expert on
the CFB technology. Lacbain also admitted that he is neither a scientist nor an expert on matters of the environment.

Petitioners cited various scientific studies or articles and websites culled from the internet. However, the said scientific studiesand
articles including the alleged Key Observations and Recommendations on the EIS of the Proposed RPE Project by Rex Victor O. Cruz
(Exhibit "DDDDD") attached to the Petition, were not testified to by an expert witness, and are basically hearsay in nature and
cannot be given probative weight. The article purportedly written by Rex Victor O. Cruz was not even signed by the said author,
which fact was confirmed by Palatino. Petitioners’ witness, Lacbain, admitted that he did not personally conduct any study on the
environmental or health effects of a coal-firedpower plant, but only attended seminars and conferences pertaining to climate
change; and that the scientific studies mentioned in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA")
of the Sangguniang Panlalawiganof Zambales is based on what he read on the internet, seminars he attended and what he heard
from unnamed experts in the field of environmental protection.

In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by the concerned residents the Key Observations
and Recommendations on the EIS of Proposed RPE Project by Rex Victor O. Cruz, and that he merely received and read the five (5)
scientific studies and articles which challenge the CFB technology. Palatino also testified that: he was only furnished by the
petitioners copies of the studies mentioned in his Judicial Affidavit and he did not participate in the execution, formulation or
preparation of any of the said documents; he does not personally know Rex Cruz or any of the authors of the studies included in his
Judicial Affidavit; he did not read other materials about coal-fired power plants; he is not aware of the acceptable standards as far as
the operation of a coal-fired power plant is concerned; petitioner Velarmino was the one who furnished him copies of the
documents in reference to the MOU and some papers related to the case; petitioner Peralta was the one who e-mailed to him the
soft copy ofall the documents [letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and he has never been at the
actual Power Plant projectsite. It must be noted that petitioners Velarmino and Peralta were never presented as witnesses in this
case. In addition, Palatino did not identify the said studies but simplyconfirmed that the said studies were attached to the Petition.

Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his orher personal
knowledge, that is, which are derived from the witness’ own perception. Concomitantly, a witness may not testify on matters which
he or she merely learned from others either because said witness was told or read or heard those matters. Such testimony is
considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay rule.
Hearsay is notlimited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well
as oral statements. There are several exceptions to the hearsay rule under the Rules of Court, among which are learned treatises
under Section 46 of Rule 130, viz:

"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subjectof history, law, science, or art is admissible as
tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that
the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject."

The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises. We cannot take judicial notice of the
same, and no witness expert in the subjectmatter of this case testified, that the writers of the said scientific studies are recognized in
their profession or calling as experts in the subject.
In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.

In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in Mechanical Engineering from
Worcester Polytechnic Institute; he is a Consulting Engineer of Steam Generators of URS; he was formerly connected with Foster
Wheeler where he held the positions of site commissioning engineer, testing engineer, instrumentation and controls engineer,
mechanical equipment department manager, director of boiler performance and mechanical design engineering and pulverized coal
product director. He explained that: CFB stands for Circulating Fluidized Bed; it is a process by which fuel is fed to the lower furnace
where it is burned in an upward flow of combustion air; limestone, which is used as sulfur absorbent, is also fed to the lower furnace
along with the fuel; the mixture offuel, ash, and the boiler bed sorbent material is carried to the upper part of the furnace and into a
cyclone separator; the heavier particles which generally consist of the remaining uncombusted fuel and absorbent material are
separated in the cyclone separator and are recirculated to the lower furnace to complete the combustion of any unburned particles
and to enhance SO2 capture by the sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in the electrostatic
precipitator; furnace temperature is maintained in the range of 800° to 900° C by suitable heat absorbing surface; the fuel passes
through a crusher that reduces the size to an appropriate size prior to the introduction into the lower furnace along with the
limestone; the limestone is used as a SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an inert and stable
material; air fans at the bottom of the furnace create sufficient velocity within the steam generator to maintain a bed of fuel, ash,
and limestone mixture; secondary air is also introduced above the bed to facilitate circulation and complete combustion of the
mixture; the combustion process generates heat, which then heats the boiler feedwater flowing through boiler tube bundles under
pressure; the heat generated in the furnace circuit turns the water to saturated steam which is further heated to superheated
steam; this superheated steam leaves the CFB boiler and expands through a steam turbine; the steam turbine is directly connected
to a generator that turns and creates electricity; after making its way through the steam turbine, the low-pressure steam is
exhausted downwards into a condenser; heat is removed from the steam, which cools and condenses into water (condensate); the
condensate is then pumped back through a train of feedwater heaters to gradually increase its temperature beforethis water is
introduced to the boiler to start the process all over again; and CFB technology has advantagesover pulverized coal firing without
backend cleanup systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs
have a wider range of flexibility so they can environmentally handle a wider range of fuel constituents, mainly the constituent sulfur;
and is capable of handling different types of coal within the range of the different fuelconstituents; since CFB is the newer
technology than the PC or stalker fire, it has better environmental production; 50 percent ofthe electric generation in the United
States is still produced by coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted; and there will be a lower
percentage of emissions than any other technology for the coal.

In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in FosterWheeler; he was a Manager of
Process Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of Science degree in Chemical Engineering.He
explained that: CFB boilers will emit PAHs but only in minimal amounts, while BFB will produce higher PAH emissions; PAH is a
natural product of any combustion process; even ordinary burning, such as cooking or driving automobiles, will have some emissions
that are not considered harmful; it is only when emissions are of a significant level that damage may be caused; a CFB technology
has minimal PAH emissions; the high combustion efficiency of CFB technology, due to long residence time of particles inside the
boiler, leads to minimal emissions of PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as well as
decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production; and CFB does not cause emissions
beyond scientificallyacceptable levels. He testified, inter alia, that: the CFB technology is used worldwide; they have a 50% percent
share of CFB market worldwide; and this will be the first CFB by Foster Wheeler in the Philippines; Foster Wheeler manufactures and
supplies different type[s] of boilers including BFB, but CFB is always applied on burning coal, so they do not apply any BFB for coal
firing; CFB has features which have much better combustion efficiency, much lower emissions and it is more effective as a boiler
equipment; the longer the coal stays inthe combustion chamber, the better it is burned; eight (8) seconds is already beyond
adequate but it keeps a margin; in CFB technology, combustion technology is uniform throughout the combustion chamber; high
velocity is used in CFB technology, that is vigorous mixing or turbulence; turbulence is needed to get contact between fuel and
combustion air; and an important feature of CFB is air distribution.

In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary Engineer and Environmental Planner in the
Philippines; he is also a chartered Professional Engineer inAustralia and a member of the colleges of environmental engineers and
chemical engineers of the Institution of Engineers (Australia); he completed his Bachelor in Chemical Engineering in 1970, Master of
Environmental Engineering in 1972 and Doctor of Environmental Engineering in 1974; he also graduated from the University of
Sydney Law School with the degree of Master of Environmental Law in 2002 and PhD in Law from Macquarie University in 2007. He
explained in his Judicial Affidavit that: the impacts identified and analyzed in the EIA process are all potential or likely impacts; there
are a larger number of EIA techniques for predicting the potential environmental impacts; it is important to note that all those
methods and techniques are only for predicting the potential environmental impacts, not the real impacts; almost all environmental
systems are non-linear and they are subject to chaotic behavior that even the most sophisticated computer could not predict
accurately; and the actual or real environmental impact could only be established when the project is in actual operation. He
testified, inter alia, that: the higher the temperature the higher the nitrous oxide emitted; in CFB technology, the lower the
temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide but not as high as conventional coal; the CFB is the
boiler; from the boiler itself,different pollution control facilities are going to be added; and for the overall plant with the pollution
control facilities, the particulate matters, nitrogen oxide and sulfur dioxide are under control. (Citations omitted) 121

We also note that RP Energy controverted in detail the afore-summarized allegations of the Casiño Group on the four areas of
environmental damage that will allegedly occur upon the construction and operation of the power plant:

1. On thermal pollution of coastal waters.

As to the extent of the expected rise in water temperature once the power plant is operational, Ms. Mercado stated in her
JudicialAffidavit thus:

Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?

A: The thermal dispersion modeling results show that largest warming change (0.95°C above ambient) is observed in the shallowest
(5 m) discharge scenario. The warmest surface temperature change for the deepest (30 m) scenario is 0.18°C. All the simulated
scenarios comply with the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m mixing zone. The proposed
power plant location is near the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal discharge plume. Since
the area is well-flushed, mixing and dilution of the thermal discharge is expected.

It also concluded that corals are less likely to be affected by the cooling water discharge as corals may persist in shallow marine
waterswith temperatures ranging from 18°C to 36°C. The predicted highest temperature of 30.75°C, from the 0.95°C increase in
ambient in the shallowest (5 m) discharge scenario, is within this range. 122

In the same vein, Dr. Ouano stated in his Judicial Affidavit:

Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature change of 1°C to 2°C canalready affect the
metabolism and other biological functions of aquatic organisms such as mortality rate and reproduction." What is your expert
opinion, if any, on this matter alleged by the Petitioners?

A: Living organisms have proven time and again that they are very adaptable to changes in the environment. Living organisms have
been isolated in volcanic vents under the ocean living on the acidic nutrient soup of sulfur and other minerals emitted by the volcano
to sub-freezing temperature in Antarctica. Asa general rule, metabolism and reproductive activity [increase] with temperature until a
maximum is reached after which [they decline]. For this reason, during winter, animals hibernate and plants become dormant after
shedding their leaves. It is on the onset of spring that animals breed and plants bloom when the air and water are warmer. At the
middle of autumn when the temperature drops to single digit, whales, fish, birds and other living organisms, which are capable of
migrating, move to the other end of the globe where spring is just starting. In the processes of migration, those migratory species
have to cross the tropics where the temperature is not just one or two degrees warmer but 10 to 20 degrees warmer. When
discussing the impact of 1 to 2 degrees temperature change and its impact on the ecosystem, the most important factors to consider
are – (1) Organism Type – specifically its tolerance to temperature change (mammals have higher tolerance); (2) Base Temperature –
it is the temperature over the optimum temperature such that an increasewill result in the decline in number of the organisms; (3)
Mobility or Space for Migration (i.e., an aquarium with limited space or an open ocean that the organism can move to a space more
suited to [a] specific need, such as the migratory birds); and (4) Ecosystem Complexity and Succession. The more complex the
ecosystem the more stable it is as succession and adaptation [are] more robust.

Normally, the natural variation in water temperature between early morning to late afternoon could be several degrees (four to five
degrees centigrade and up to ten degrees centigrade on seasonal basis). Therefore, the less than one degree centigrade change
predicted by the GHD modeling would have minimal impact. 123

On cross-examination, Dr. Ouano further explained—

ATTY. AZURA:

x x x When you say Organism Type – you mentioned that mammals have a higher tolerance for temperature change?
DR. OUANO:

Yes.

ATTY. AZURA:

What about other types of organisms, Dr. Ouano? Fish for example?

DR. OUANO:

Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, when it comes to cold[-]blooded animals the
tolerance is much lower. But again when you are considering x x x fish [e]specially in open ocean you have to remember that nature
by itself is x x x very brutal x x x where there is always the prey-predator relationship. Now, most of the fish that we have in open sea
[have] already a very strong adaptability mechanism.And in fact, Kingman back in 1964 x x x studied the coal reefaround the gulf of
Oman where the temperature variation on day to day basis varied not by 1 degree to 2 degrees but by almost 12 degrees
centigrade. Now, in the Subic Bay area which when you’re looking at it between daytime variation, early dawn when it is cold, the air
is cold, the sea temperature, sea water is quite cold. Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in
the] Subic Bay area is around 2 to 4 degrees by natural variation from the sun as well as from the current that goes around it. So
when you are talking about what the report has said of around 1 degree change, the total impact x x x on the fishes will be minimal.
xxx

ATTY. AZURA:

x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature variation, are still very adaptable.
What about other sea life, Dr. Ouano, for example, sea reptiles?

DR. OUANO:

That’s what I said. The most sensitive part of the marine ecology is physically the corals because corals are non-migratory, they are
fix[ed]. Second[ly] x x x corals are also highly dependent on sunlight penetration. If they are exposed out of the sea, they die; if
theyare so deep, they die. And that is why I cited Kingman in his studies of coral adaptability [in] the sea ofOman where there was a
very high temperature variation, [they] survived.

ATTY. AZURA:

Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay?

DR. OUANO:

Not in Subic Bay but I have reviewedthe temperature variation, natural temperature variation from the solar side, the days side as
well as the seasonal variation. There are two types of variation since temperatures are very critical. One is the daily, which means
from early morning to around 3:00 o’clock, and the other one is seasonal variation because summer, December, January, February
are the cold months and then by April, May we are having warm temperature where the temperature goes around 32-33 degrees;
Christmas time, it drops to around 18 to 20 degrees so it[']sa variation of around seasonal variation of 14 degrees although some of
the fish might even migrate and that is why I was trying to put in corals because they are the ones that are really fix[ed]. They are
not in a position to migrate in this season.

ATTY. AZURA:

To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals. DR. OUANO:

Or threatened part because they are the ones [that] are not in a position to migrate.

ATTY AZURA:

In this case, Dr. Ouano, with respectto this project and the projected temperature change, will the corals in Subic Bay be affected?
DR. OUANO:

As far as the outlet is concerned, they have established it outside the coral area. By the time it reaches the coral area the
temperature variation, as per the GHD study is very small, it[’]s almost negligible.

ATTY AZURA:

Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about?

DR. OUANO:

If you are talking about a thermometer, you might be talking about, normally about .1 degrees centigrade. That’sthe one that you
could more or less ascertain. x x x

ATTY. AZURA:

Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that there is a normal variation in water temperature.
In fact, you said there is a variation throughout the day, daily and also throughout the year, seasonal. Just to clarify, Dr. Ouano.
When the power plant causes the projected temperature change of 1 degree to 2 degrees Celsius this will be in addition to existing
variations? What I mean, Dr. Ouano, just so I can understand, how will that work? How will the temperature change caused by the
power plant work with the existing variation? DR. OUANO:

There is something like what we call the zonal mixing. This is an area of approximately one or two hectares where the pipe goes out,
the hot water goes out. So that x x x, we have to accept x x x that [throughout it] the zone will be a disturb[ed] zone. After that one
or two hectares park the water temperature is well mixed [so] that the temperature above the normal existing variation now
practically drops down to almost the normal level.124

2. On air pollution due todust and combustion gases.

To establish that the emissions from the operation of the power plant would be compliant with the standards under the Clean Air
Act,125 Ms. Mercado stated in her Judicial Affidavit thus:

271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy?

A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following emissions,which [are] fully
compliant with the standards set by DENR:

  Predicted GLC126 for 1-hr National Ambient Air Quality

averaging period Guideline Values
SO2 45.79 µg/Nm3 340 µg/Nm3
NO2 100.8 µg/Nm3 260 µg/Nm3
CO 10 µg/Nm3 35 µg/Nm3

  Predicted GLC for 8-hr averaging period National Ambient Air Quality
Guideline Values
CO 0.19 mg/ncm 10 µg/Nm3

  Predicted GLC for 24-hr averaging period National Ambient Air Quality
Guideline Values
SO2 17.11 µg/Nm3 180 µg/Nm3
NO2 45.79 µg/Nm3 150 µg/Nm3
   Predicted GLC for 1-yr averaging period National Ambient Air Quality
Guideline Values
SO2 6.12 µg/Nm3 80 µg/Nm3
NO2 No standard ---
CO No standard ---

272. Q: What other findings resulted from the Air Dispersion Modeling, if any?

A: It also established that the highest GLC to CleanAir Act Standards ratio among possible receptors was located 1.6 km North
NorthEast ("NNE") of the Power Plant Project. Further, this ratio was valued only at 0.434 or less than half of the upper limit set out
in the Clean Air Act. This means that the highest air ambient quality disruption will happen only 1.6 km NNE of the Power Plant
Project, and that such disruption would still be compliant with the standards imposed by the Clean Air Act. 127

The Casiño Group argued, however, that, as stated inthe EIS, during upset conditions, significant negative environmental impact will
result from the emissions. This claim was refuted by RP Energy’s witness during cross-examination:

ATTY. AZURA:

If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the same document, the August 2012. Fig. 2-
78 appears to show, there’s a Table, Ms. Mercado, the first table, the one on top appears to show a comparison in normal and upset
conditions. I noticed, Ms. Mercado, that the black bars are much higher than the bars in normal condition. Can you state what this
means?

MS. MERCADO:

It means there are more emissions that could potentially be released when it is under upset condition.

ATTY. AZURA:

I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3 and so forth and on page 188 of this
same document, Annex "9-Mercado," there is a list identifying these receptors, for example, Receptor 6, Your Honor, appears to
have been located in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that mean that if upset condition[s]
were to occur, the Olongapo City Poblacion will be affected by the emissions? MS. MERCADO:

All it means is that there will be higher emissions and a higher ground concentration. But you might want to alsopay attention to the
"y axis," it says there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it means that even under upset conditions… say
for R6, the ground level concentration for upset condition is still around .1 or 10% percent only of the Clean Air Act limit. So it’s still
much lower than the limit.

ATTY. AZURA:

But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,] emissionswould increase in the Olongapo
City Poblacion?

MS. MERCADO:

Not emissions will increase. The emissions will be the same but the ground level concentration, the GLC, will be higher if you
compare normal versus upset. But even if it[’]s under upset conditions, it is still only around 10% percent of the Clean Air Act Limit.

xxxx

J. LEAGOGO:
So you are trying to impress upon this Court that even if the plant is in an upset condition, it will emit less than what the national
standards dictate?

MS. MERCADO:

Yes, Your Honor.128

With respect to the claims that the powerplant will release dangerous PAHs and CO, Engr. Sarrki stated in his Judicial Affidavit thus:

Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic Compounds ("VOC") specifically Polycyclic
Aromatic Hydrocarbon ("PAH") will be emitted even by CFB boilers. What can you say about this?

A: Actually, the study cited by the Petitioners does not apply to the present case because it does not refer to CFB technology. The
study refers to a laboratory-scale tubular Bubbling Fluidized Bed ("BFB") test rig and not a CFB. CFB boilers will emit PAHs but only in
minimal amounts. Indeed, a BFB will produce higher PAH emissions.

xxxx

Q: Why can the study cited by Petitioners not apply in the present case?

A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not replicate the staged-air combustion
process of the CFB that RP Energy will use. Thisstaged-air process includes the secondary air. Injecting secondary air into the system
will lead to more complete combustion and inhibits PAH production. There is a study entitled "Polycyclic Aromatic Hydrocarbon
(PAH) Emissions from a Coal-Fired Pilot FBC System" byKunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of
Hazardous Materials B84 (2001) where the findings are discussed.

Also, the small-scale test rig utilized in the study does not simulate the process conditions (hydrodynamics, heat transfer
characteristics, solid and gas mixing behavior, etc.) seen in a large scale utility boiler, like those which would be utilized by the Power
Plant Project.

xxxx

Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce PAH production?

A: Increase in the excess air ratio will also minimizePAH production. Furthermore, decrease in Calcium to Sulfur moral ratio ("Ca/S"),
as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. This is also based on the study
entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" by Kunlei Liu, Wenjun Han, Wei-Ping
Pan, John T. Riley.

In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and chlorine contents minimizing PAH production.
Also, due to optimum conditions for the in-furnace SO2capture, the Ca/S will be relatively low, decreasing PAH production.

Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a poisonous, colorless and odorless gas is also
produced when there is partial oxidation or when there is not enough oxygen (O2) to form carbon dioxide (CO2)." What can you say
about this?

A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In fact, I understand that the projected
emissions level of the Power Plant Project compl[ies]with the International Finance Corporation ("IFC") standards. Furthermore,
characteristics of CFB technology such as long residence time, uniform temperature and high turbulence provide an effective
combustion environment which results [in] lower and safer CO emissions.

Q: I have no further questions for youat the moment. Is there anything you wish to add to the foregoing?

A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as cooking or driving automobiles, will have
some emissions that are not considered harmful. It is only when emissions are of a significant level that damage may be caused.
Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH emissions. The high combustion efficiency of
CFB technology, due to the long residence time of particles inside the boiler, leads to the minimal emissions of PAH.
Furthermore,other factors such as increase in the excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and chlorine
contents of coal will likewise minimize PAH production. CFB does not cause emissions beyond scientifically acceptable levels, and we
are confident it will not result in the damage speculated by the Petitioners. 129

3. On water pollution from toxic coal combustion waste.

With regard to the claim that coal combustion waste produced by the plant will endanger the health of the inhabitants nearby, Dr.
Ouano stated in his Judicial Affidavit thus:

Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal combustion waste is highly toxic and is said to cause
birth defects and cancer risks among others x x x." What is your expert opinion, if any, on this matter alleged by the Petitioners?

A: Coal is geologically compressed remains of living organisms that roamed the earth several million years ago. In the process of
compression, some of the minerals in the soil, rocks or mud, the geologic media for compression, are also imparted into the
compressed remains. If the compressing media of mud, sediments and rocks contain high concentration of mercury, uranium, and
other toxic substances, the coal formed will likewise contain high concentration of those substances. If the compressing materials
have low concentration of those substances, then the coal formed will likewise have low concentration of those substances. If the
coal does not contain excessive quantities of toxic substances, the solid residues are even used in agriculture to supply
micronutrients and improve the potency of fertilizers. It is used freely as a fill material in roads and other construction activities
requiring large volume of fill and as additive in cement manufacture. After all, diamonds that people love to hang around their necks
and keep close to the chest are nothing more than the result of special geologic action, as those in volcanic pipes on coal. 130

RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the waste generated by the plant will be
properly handled, to wit:

4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and fly ash. Bottom ash consists
oflarge and fused particles that fall to the bottom of the furnace and mix with the bed media.Fly ash includes finegrained
and powdery particles that are carried away by flue gas into the electrostatic precipitator, which is then sifted and
collected. These by-products are non-hazardous materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and Boiler Slag
have consequent beneficial uses which "generate significant environmental, economic, and performance benefits." Thus, fly
ash generated during the process will be sold and transported to cement manufacturing facilities or other local and
international industries.

4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal shall be properly handled and
stored.

4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a series of screw and chain
conveyors and bucket elevator to the bottom ash silo. The collection and handling system is enclosed to prevent dust
generation. Discharge chutes will be installed at the base of the bottom ash silo for unloading. Open trucks will be used to
collect ash through the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash cells. A portion of the
bottom ash will be reused as bed materialthrough the installation of a bed media regeneration system (or ash recycle).
Recycled bottom ash will be sieved using a vibrating screen and transported to a bed material surge bin for re-injection into
the boiler.

4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection hopper using compressed air
and transported in dry state to the fly ash silo. Two discharge chutes will be installed at the base of the fly ash silo. Fly ash
can either be dry-transferred through a loading spout into an enclosed lorry or truck for selling, re-cycling, or wet-
transferred through a wet unloader into open dump trucks and transported to ash cells. Fly ash discharge will operate in
timed cycles, with an override function to achievecontinuous discharge if required. Fly ash isolation valves in each branch
line will prevent leakage and backflow into non-operating lines.

4.1.53 Approximately 120,000m² will be required for the construction of the ash cell. Ash will be stacked along the sloping
hill, within a grid of excavations (i.e. cells) with a 5m embankment. Excavated soils will be used for embankment
construction and backfill. To prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum depth
of400mm will be laid at the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil backfill will be applied to
 immobilize ash and prevent migration via wind. Ash cell walls will be lined with high-density polyethylene to prevent
seepage. This procedure and treatment method is in fact suitable for disposal of toxic and hazardous wastes although fly
ash is not classified as toxic and hazardous materials. 131

Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified thus:

J. LEAGOGO:

In terms of fault lines, did you study whether this project site is in any fault line?

DR. OUANO:

There are some fault linesand in fact, in the Philippines it is very difficult to find an area except Palawan where there is no fault line
within 20 to 30 [kilometers]. But then fault lines as well as earthquakes really [depend] upon your engineering design. I mean, Sto.
Tomas University has withstood all the potential earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or so because the
design for it back in 1600 they are already using what we call floating foundation. So if the engineering side for it[,] technology is
there to withstand the expected fault line [movement]. J. LEAGOGO:

What is the engineering side of the project? You said UST is floating.

DR. OUANO:

The foundation, that means to say you don’t break…

J. LEAGOGO:

Floating foundation. What about this, what kind of foundation?

DR. OUANO:

It will now depend on their engineering design, the type of equipment…

J. LEAGOGO:

No, but did you read it in their report?

DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the equipment supplier.

J. LEAGOGO:

So it[’]s not yet there?

DR. OUANO:

It[’]s not yet there in the site but it is also covered inour Building Code what are the intensities of earthquakes expected of the
different areas in the Philippines.

J. LEAGOGO:

Have you checked our geo-hazard maps in the Philippines to check on this project site?

DR. OUANO:

Yes. It is included there in the EIA Report.

J. LEAGOGO:

It[’]s there?

DR. OUANO:

It[’]s there.132

4. On acid deposition in aquatic and terrestrial ecosystems.

Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus:

Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power plant will release 1,888 tons of nitrous oxides
(NOx) per year and 886 tons of sulfur dioxide (SO2) per year. These oxides are the precursors to the formation of sulfuric acid and
nitric acid which are responsible for acid deposition." Whatis your expert opinion on this matter alleged by the Petitioners?

A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial activities and geologic activities as well
as from human activities such as power plants and fertilizer usage in agriculture. SO2 is also found in air, water and soil from
bacterial, geologic and human activities. NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to widely
redistribute and recycle those essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and animal life would
be limited to small areas of this planet where nitrogen and sulfur are found in abundance. With intensive agricultural practices,
nitrogen and sulfur are added in the soil as fertilizers.

Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those values set in the air quality standards.
NO2 and SO2 in the air in concentrations lower than those set in the standards have beneficial effect to the environment and
agriculture and are commonly known as micronutrients. 133

On clarificatory questions from the appellate court, the matter was further dissected thus:

J. LEAGOGO:

x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness answered, yes, itwill produce 886
tons of sulfur dioxide per year. And he also answered yes, that these oxides are the precursors to the formation of sulfuric acid and
nitric acid. Now my clarificatory question is, with this kind of releases there will be acid rain?

DR. OUANO:

No.

J. LEAGOGO:

Why?

DR. OUANO:

Because it[’]s so dilute[d].

J. LEAGOGO:

It will?

DR. OUANO:

Because the acid concentration is so dilute[d] so that it is not going to cause acid rain.
J. LEAGOGO:

The acid concentration is so diluted that it will not cause acid rain?

DR. OUANO:

Yes .

J. LEAGOGO:

What do you mean it[’]s so diluted? How will it be diluted?

DR. OUANO:

Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the air in the atmosphere. And besides this 886 tons, this is
not released in one go, it is released almost throughout the year.

J. LEAGOGO:

You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2 concentration are excessive." So whendo you
consider it as excessive?

DR. OUANO:

That is something when you are talking about acid…

J. LEAGOGO:

In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive?

DR. OUANO:

It is in concentration not on tons weight, Your Honor.

J. LEAGOGO:

In concentration?

DR. OUANO:

In milligrams per cubic meter, milligrams per standard cubic meter.

J. LEAGOGO:

So being an expert, whatwill be the concentration of this kind of 1,888 tons of nitrous oxide? What will be the concentration in terms
of your…?

DR. OUANO:

If the concentration is in excess ofsomething like 8,000 micrograms per standard cubic meters, then there isalready potential for acid
rain.

J. LEAGOGO:

I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide?
DR. OUANO:

Yes .

J. LEAGOGO:

In terms of concentration, what will that be?

DR. OUANO:

In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the time when acid rain will start [is when
the concentration gets] around 8,000 milligrams per standard cubic meters. So we have 19 compared to 8,000. So weare very, very
safe.

J. LEAGOGO:

What about SO2?

DR. OUANO:

SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur dioxide this acid rain most likely will start at around 7,000
milligrams per standard cubic meter but then … sorry, it[’]s around 3,400 micrograms per cubic meter. That is the concentration for
sulfur dioxide, and in our plant it will be around 45 micrograms per standard cubic meter. So the acid rain will start at 3,400 and the
emission is estimated here to result to concentration of 45.7 micrograms.

J. LEAGOGO:

That is what GHD said in their report.

DR. OUANO:

Yes. So that is the factor of x x x safety that we have.134

Apart from the foregoing evidence, wealso note that the above and other environmental concerns are extensively addressed in RP
Energy’s Environmental Management Plan or Program(EMP). The EMP is "a section in the EIS that details the prevention, mitigation,
compensation, contingency and monitoring measures to enhance positive impacts and minimize negative impacts and risks of a
proposed project or undertaking."135 One of the conditions of the ECC is that RP Energy shall strictly comply with and implement its
approved EMP. The Casiño Group failed to contest, with proof, the adequacy of the mitigating measures stated in the aforesaid EMP.

In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the alleged significant environmental
damage that will be caused by the project, the appellate court relied mainly on the testimonies of experts, which we find to be in
accord withjudicial precedents. Thus, we ruled in one case:

Although courts are not ordinarily bound by testimonies of experts, they may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the
province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the
weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he
testifies,the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he
testifies, and any other matters which serve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it
isto be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the
expert opinion may be given controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and
the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable inthe absence of
an abuse of that discretion.136

Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the alleged grave environmental damage
which will be caused by the construction and operation of the power plant.
In another vein, we, likewise, agree with the observationsof the appellate court that the type of coal which shall be used in the
power plant has important implications as to the possible significant negative environmental impacts of the subject
project.137 However, there is no coal supply agreement, as of yet, entered into by RP Energy with a third-party supplier. In
accordance with the terms and conditions of the ECC and in compliance with existing environmental laws and standards, RP Energy
is obligated to make use of the proper coal type that will not cause significant negative environmental impacts.

The alleged negative environmental

assessment of the project by experts in a
report generated during the social
acceptability consultations

The Casiño Group also relies heavily on a report on the social acceptability process of the power plant project to bolster itsclaim that
the project will cause grave environmental damage. We purposely discuss this matter in this separate subsection for reasons which
will be made clear shortly.

But first we shall present the pertinent contents of this report.

According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social acceptabilitypolicy consultations with
different stakeholders on RP Energy’s proposed 600 MW coal plant project at the Subic Bay Exhibition and Convention Center. The
results thereof are contained in a document prepared by SBMA entitled "Final Report: Social Acceptability Process for RP Energy,
Inc.’s 600-MW Coal Plant Project" (Final Report). We notethat SBMA adopted the Final Report as a common exhibit with the Casiño
Group in the course of the proceedings before the appellate court.

The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant from the participants. Their
concerns included environmental, health, economic and socio-cultural factors. Pertinent to this case is the alleged assessment,
contained in the Final Report, of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the
University of the Philippines, Los Baños and a forest ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related
information as to public health; and (3) Andre Jon Uychiaco, a marine biologist.

The Final Report stated these experts’alleged views on the project, thus:

IV. EXPERTS’ OPINION

xxxx

The specialists shared the judgment that the conditions were not present to merit the operation of a coal-fired power plant,and to
pursue and carry out the project with confidence and assurance that the natural assets and ecosystems within the Freeport area
would not be unduly compromised, or that irreversible damage would not occur and that the threats to the flora and fauna within
the immediate community and its surroundings would be adequately addressed. The three experts were also of the same opinion
that the proposed coal plant project would pose a wide range of negative impacts on the environment, the ecosystems and human
population within the impact zone.

The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI to be incomplete and limited in scope
based on the following observations:

i. The assessment failed to include areas 10km. to 50km. from the operation site, although according tothe panel, sulfur
emissions could extend as far as 40-50 km.

ii. The EIA neglected to include other forests in the Freeport in its scope and that there were no specific details on the
protection of the endangered flora and endemic fauna in the area. Soil, grassland, brush land, beach forests and home
gardens were also apparently not included in the study.

iii. The sampling methods used inthe study were limited and insufficient for effective long-term monitoring of surface
water, erosion control and terrestrial flora and fauna.
The specialists also discussed the potential effects of an operational coalfired power plant [on] its environs and the community
therein. Primary among these were the following:

i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would diminish
forest cover. The acid rain would apparently worsen the acidity of the soil in the Freeport.

ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulationof contaminants and toxic
materials which would eventually lead to the overall reduction of marine productivity.

iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals suchas mercury and lead to
the surrounding region, which would adversely affect the health of the populace in the vicinity.

V. FINDINGS

Based on their analyses of the subject matter, the specialists recommended that the SBMA re-scrutinize the coal-fired power plant
project with the following goals in mind:

i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and development plans, including its
Protected Area Management Plan;

ii. To properly determine actual and potential costs and benefits;

iii. To effectively determine the impacts on environment and health; and

iv. To ensure a complete and comprehensive impacts zone study.

The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of The Proposed Coal Plant Project
Relative To Each Stakeholder Which Should Include The Environment As Provider Of Numerous Environmental Goods And Services.

They also recommended an Integrated/Programmatic Environmental Impact Assessmentto accurately determine the environmental
status of the Freeport ecosystem as basis and reference in evaluating future similar projects. The need for a more Comprehensive
Monitoring System for the Environment and Natural Resourceswas also reiterated by the panel. 138

Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP Energy relative to the project:

Key Observations and Recommendations on the EIS of Proposed RPE Project

Rex Victor O. Cruz

Based on SBMA SAP on December 7-9, 2011

1. The baseline vegetation analysis was limited only within the project site and its immediate vicinity. No vegetation analysis
was done in the brushland areas in the peninsula which is likely to be affected in the event acid rain forms due to emissions
from the power plant.

2. The forest in the remaining forests inthe Freeport was not considered as impact zone as indicated by the lack
ofdescription of these forests and the potential impacts the project might have on these forests. This appears to be a key
omission in the EIS considering that these forests are well within 40 to 50 km away from the site and that there are studies
showing that the impacts of sulphur emissions can extend as far as 40 to 50 km away from the source.

3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed project site. There will be a need
to make sure that these species are protected from being damaged permanently in wholesale. Appropriate measures such
as ex situconservation and translocation if feasible must be implemented.
 4. The Project site is largely in grassland interspersed with some trees. These plants if affected by acid rain or by sulphur
emissions may disappear and have consequences on the soil properties and hydrological processes in the area. Accelerated
soil erosion and increased surface runoff and reduced infiltration of rainwater into the soil.

5. The rest of the peninsula is covered with brushland but were never included as part of the impact zone.

6. There are home gardens along the coastal areas of the site planted to ornamental and agricultural crops which are likely
to be affected by acid rain.

7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be affectedalso by acid rain.

8. There are no Environmentally Critical Areas within the 1 km radius from the project site. However, the
OlongapoWatershed Forest Reserve, a protected area is approximately 10 kmsouthwest of the projectsite. Considering the
prevailing wind movement in the area, this forest reserve is likely to be affected by acid rain if it occurs from the emission of
the power plant. This forest reserve is however not included as partof the potential impact area.

9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with moderate to severe erosion
potential. The sparse vegetation cover in the vicinity of the projectsite is likely a result of the highly acidic soil and the
nutrient deficiency. Additional acidity may result from acid rain that may form in the area which could further make it
harder for the plants to grow in the area that in turn could exacerbate the already severe erosion in the area. 10. There is a
need to review the proposalto ensure that the proposed project is consistent with the vision for the Freeport as enunciated
in the SBMA Master Plan and the Protected Area Management Plan. This will reinforce the validity and legitimacy of these
plans as a legitimate framework for screening potential locators in the Freeport. Itwill also reinforce the trust and
confidence of the stakeholders on the competence and authority of the SBMA that would translate in stronger popular
support to the programs implemented in the Freeport.

11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the minimum amount and that
adequate funds will be provided by the proponent as necessary beyond the minimum amounts. Furthermore the basis for
the amounts allocated for the items (public liability and rehabilitation) in Trust Fund and in EGF (tree planting and
landscaping, artificial reef establishment) must be clarified. The specific damages and impacts that will be covered by the TF
and EGF must also be presented clearly at the outset to avoid protracted negotiations in the event of actual impacts
occurring in the future.

12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of measurement. More importantly, the
proposed method of measurement (sampling transect) while adequate for estimating the diversity of indices for
benchmarking is not sufficient for long[-]term monitoring. Instead, long[-]term monitoringplots (at least 1 hectare in size)
should be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.

13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the project site, it will be useful
not only for mitigating and avoiding unnecessary adverse impacts ofthe project but also for improving management
decisions if long[-]term monitoring plots for the remaining natural forests in the Freeport are established. These plots will
also be useful for the study of the dynamic interactions of terrestrial flora and fauna with climate change, farming and other
human activities and the resulting influences on soil, water, biodiversity, and other vital ecosystem services in the
Freeport.139

We agree with the appellate court that the alleged statements by these experts cannot be given weight because they are hearsay
evidence. None of these alleged experts testified before the appellate court to confirm the pertinent contents of the Final Report.
No reason appears in the records of this case as to why the Casiño Group failed to present these expert witnesses.

We note, however, that these statements, on their face, especially the observations of Dr. Cruz, raise serious objections to the
environmental soundness of the project, specifically, the EIS thereof.It brings to fore the question of whether the Court can, on its
own, compel the testimonies of these alleged experts in order to shed light on these matters in view of the rightat stake— not just
damage to the environment but the health, well-being and,ultimately, the livesof those who may be affected by the project.

The Rules of Procedure for Environmental Cases liberally provide the courts with means and methods to obtain sufficient
information in order to adequately protect orsafeguard the right to a healthful and balanced ecology. In Section 6 (l) 140 of Rule 3
(Pre-Trial), when there is a failure to settle, the judge shall, among others, determine the necessity of engaging the services of a
qualified expert as a friend of the court (amicus curiae). While, in Section 12 141 of Rule 7 (Writ of Kalikasan), a party may avail of
discovery measures: (1) ocular inspection and (2) production or inspection of documents or things. The liberality of the Rules in
gathering and even compelling information, specifically with regard to the Writ of Kalikasan, is explained in this wise: [T]he writ of
kalikasanwas refashioned as a tool to bridge the gap between allegation and proof by providing a remedy for would-be
environmental litigants to compel the production of information within the custody of the government. The writ would effectively
serve as a remedy for the enforcement of the right to information about the environment. The scope of the fact-finding power could
be: (1) anything related to the issuance, grant of a government permit issued or information controlled by the government or private
entity and (2) [i]nformation contained in documents such as environmental compliance certificate (ECC) and other government
records. In addition, the [w]rit may also be employed to compel the production of information, subject to constitutional limitations.
This function is analogous to a discovery measure, and may be availed of upon application for the writ. 142

Clearly, in environmental cases, the power toappoint friends of the court in order to shed light on matters requiring special technical
expertise as well as the power to order ocular inspections and production of documents or things evince the main thrust of, and the
spirit behind, the Rules to allow the court sufficient leeway in acquiring the necessary information to rule on the issues presented for
its resolution, to the end that the right toa healthful and balanced ecology may be adequately protected. To draw a parallel, in the
protection of the constitutional rights of an accused, when life or liberty isat stake, the testimonies of witnesses may be compelled
as an attribute of the Due Process Clause. Here, where the right to a healthful and balanced ecology of a substantial magnitude is at
stake, should we not tread the path of caution and prudence by compelling the testimonies of these alleged experts?

After due consideration, we find that, based on the statements in the Final Report, there is no sufficiently compelling reason to
compel the testimonies of these alleged expert witnesses for the following reasons.

First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the study or design/implementation (or some other
aspect) of the project which provides a causal link or, at least, a reasonable connection between the construction and operation
ofthe project vis-à-vis potential grave environmental damage. In particular, they do not explain why the Environmental Management
Plan (EMP) contained in the EIS of the project will notadequately address these concerns.

Second, some of the concerns raisedin the alleged statements, like acid rain, warming and acidification of the seawater, and
discharge of pollutants were, as previously discussed, addressed by the evidence presented by RP Energy before the appellate court.
Again, these alleged statements do not explain why such concerns are not adequately covered by the EMP of RP Energy.

Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do not clearly and specifically establish
how these omissions have led to the issuance of an ECC that will pose significant negative environmental impacts once the project is
constructed and becomes operational. The recommendations stated therein would seem to suggest points for improvement in the
operation and monitoring of the project,but they do not clearly show why such recommendations are indispensable for the project
to comply with existing environmental laws and standards, or how non-compliance with such recommendations will lead to an
environmental damage of the magnitude contemplatedunder the writ of kalikasan. Again, these statements do not state with
sufficient particularity how the EMP in the EIS failed to adequately address these concerns.

Fourth, because the reason for the non-presentation of the alleged expert witnesses does not appear on record, we cannot assume
that their testimonies are being unduly suppressed.

By ruling that we do not find a sufficiently compelling reason to compel the taking of the testimonies of these alleged expert
witnesses in relation to their serious objections to the power plant project, we do not foreclose the possibility that their testimonies
could later on be presented, in a proper case, to more directly, specifically and sufficientlyassail the environmental soundness of the
project and establish the requisite magnitude of actualor threatened environmental damage, if indeed present. After all, their sense
ofcivic duty may well prevail upon them to voluntarily testify, if there are truly sufficient reasons tostop the project, above and
beyond their inadequate claims in the Final Report that the project should not be pursued. As things now stand,however, we have
insufficient bases to compel their testimonies for the reasons already proffered.

The alleged admissions of grave

environmental damage in the EIS of the
project.

In their Omnibus Motions for Clarification and Reconsideration before the appellate court and Petition for Review before thisCourt,
the Casiño Group belatedly claims that the statements in the EIS prepared by RPEnergy established the significant negative
environmental impacts of the project. They argue in this manner:
Acid Rain

35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project,
acid rain may occur in the combustion of coal, to wit – x x x x

During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This may contribute to the
occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems
for residents within the impact area.

xxxx

Asthma Attacks

36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power plant operations, to wit –

xxxx

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended
particulates from plant operations.144

RP Energy, however, counters that the above portions of the EIS were quoted out of context. As to the subject of acid rain, the EIS
states in full:

Operation

During the operation phase, combustion of coal will result in emissions of particulates, SOx and NOx. This may contribute to the
occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems
for residents within the impact area. Emissions may also have an effect onvegetation (Section 4.1.4.2). However, the use of CFBC
technology is a built-in measure that results in reduced emission concentrations. SOx emissions will beminimised by the inclusion of
a desulfurisation process, whilst NOx emissions will be reduced as the coal is burned at a temperature lower than that required to
oxidise nitrogen.145 (Emphasis supplied)

As to the subject of asthma attacks, the EIS states in full:

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposureto suspended
particulates from plant operations. Coal and ash particulates may also become suspended and dispersed into the air during
unloading and transport, depending on wind speed and direction. However, effect on air quality due to windblown coal particulates
will be insignificant as the coal handling system will have enclosures (i.e. enclosed conveyors and coal dome) to eliminate the
exposure of coal to open air, and therefore greatly reduce the potential for particulates from being carried away by wind
(coalhandling systems, Section 3.4.3.3). In addition, the proposed process will include an electrostaticprecipitator that will remove
fly ash from the flue gas prior to its release through the stacks, and so particulates emissions will be minimal. 146 (Emphasis supplied)

We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma attacks, it goes on to state that there are
mitigating measures that will be put in place to prevent these ill effects. Quite clearly, the Casiño Group quoted piecemeal the EIS in
sucha way as to mislead this Court as to its true and full contents.

We deplore the way the Casiño Group has argued this point and we take this time to remind it that litigants should not trifle
withcourt processes. Along the same lines, we note how the Casiño Group has made serious allegations in its Petition for Writ of
Kalikasanbut failed to substantiate the same in the course of the proceedings before the appellate court. In particular, during the
preliminary conference of this case, the Casiño Group expressly abandoned its factual claims on the alleged grave environmental
damage that will be caused by the power plant (i.e., air, water and land pollution) and, instead, limited itself to legal issues regarding
the alleged non-compliance of RP Energy with certain laws and rules in the procurement of the ECC. 147 We also note how the Casiño
Group failed to comment on the subject Petitions before this Court, which led this Court to eventually dispense with its
comment.148 We must express our disapproval over the way it has prosecuted itsclaims, bordering as it does on trifling with court
processes. We deem itproper, therefore, to admonishit to be more circumspect in how it prosecutesits claims.
In sum, we agree with the appellate court that the Casiño Group failed to substantiate its claims thatthe construction and operation
of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan. The evidence it
presented is inadequate to establish the factual bases of its claims.

II.

Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as representative of RP Energy, in the
Statement of Accountability of the ECC.

The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement of Accountability portion of the
ECC.

We shall discuss the correctness ofthis ruling on both procedural and substantive grounds. Procedurally, we cannot fault the DENR
for protesting the manner by which the appellate court resolved the issue of the aforesaid lack of signature. We agree with the
DENR that this issue was not among those raised by the Casiño Group in its Petition for Writ of Kalikasan. 149 What is more, this was
not one of the triable issues specificallyset during the preliminary conference of this case. 150

How then did the issue oflack of signature arise?

A review of the voluminous records indicates that the matterof the lack of signature was discussed, developed or surfaced only inthe
course of the hearings, specifically, on clarificatory questions from the appellate court, to wit:

J. LEAGOGO:

I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this Environmental Compliance Certificate dated
December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your "Exhibit "18." Would you like to go over this? Are you
familiar with this document?

MS. MERCADO:

Yes, it[’]s my Annex "3," Your Honor.

J. LEAGOGO:

I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the Environmental Compliance Certificate,
ECC Ref. No. 0804-011-4021. That’s page 2 of the letter dated December 22, 2008. And on page 3, Dr. Julian Amador recommended
approval and it was approved by Sec. Atienza. You see that on page 3?

MS. MERCADO:

Yes, Your Honor.

J. LEAGOGO:

Okay. On the same page, page 3, there’s a Statement of Accountability.

MS. MERCADO:

Yes, Your Honor.

J. LEAGOGO:

Luis, who is Luis Miguel Aboitiz?

MS. MERCADO:
During that time he was the authorized representative of RP Energy,

Your Honor.

J. LEAGOGO:

Now, who is the authorized representative of RP Energy?

MS. MERCADO:

It would be Mr. Aaron Domingo, I believe.

J. LEAGOGO:

Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?

Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office
address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in
thisEnvironmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?

MS. MERCADO:

It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This
copy was not signed because during….

J. LEAGOGO:

But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your Exhibit "18" is not signed by
Mr. Aboitiz?

MS. MERCADO:

That’s correct, Your Honor.151

We find this line of questioning inadequate to apprise the parties that the lack of signature would be a key issue in this case; as in
fact it became decisive in the eventual invalidation of the ECC by the appellate court.

Concededly, a court has the power to suspend its rules of procedure in order to attain substantial justice so that it has the discretion,
in exceptional cases, to take into consideration matters not originally within the scope of the issues raised in the pleadings or set
during the preliminary conference, in order to prevent a miscarriage of justice. In the case at bar, the importance of the signature
cannot be seriously doubted because it goes into the consent and commitment of the project proponent to comply with the
conditions of the ECC, which is vital to the protection of the right to a balanced and healthful ecology of those who may be affected
by the project. Nonetheless, the power of a court tosuspend its rules of procedure in exceptional cases does not license it to foist a
surprise on the parties in a given case. To illustrate, in oral arguments before this Court, involving sufficiently important public
interest cases, we note that individual members of the Court, from time to time, point out matters that may not have been
specifically covered by the advisory (the advisory delineates the issues to be argued and decided). However, a directive is given to
the concerned parties to discuss the aforesaid matters in their memoranda. Such a procedure ensures that, at the very least, the
parties are apprised that the Court has taken an interest in such matters and may adjudicate the case on the basis thereof. Thus, the
parties are given an opportunity to adequately argue the issue or meet the issue head-on. We, therefore, find that the appellate
court should have, at the very least, directed RP Energy and the DENR to discuss and elaborate on the issue of lack of signature in
the presentation of their evidence and memoranda, beforemaking a definitive ruling that the lack thereof invalidated the ECC.This is
in keeping with the basic tenets of due process.

At any rate, we shall disregard the procedural defect and rule directly on whether the lack of signature invalidated the ECC in the
interest of substantial justice.
The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do not specifically state that the lack of signature in
the Statement of Accountability has the effect of invalidating the ECC. Unlike in wills or donations, where failure to comply withthe
specific form prescribed by law leads to its nullity, 152 the applicable laws here are silentwith respect to the necessity of a signature in
the Statement of Accountability and the effect of the lack thereof. This is, of course, understandable because the Statement of
Accountability is a mere off-shoot of the rule-making powers of the DENR relative tothe implementation of PD 1151 and PD 1586. To
determine, therefore, the effect of the lack of signature, we must look atthe significance thereof under the Environmental Impact
Assessment (EIA) Rules of the DENR and the surrounding circumstances of this case.

To place this issue in its proper context, a helpful overview of the stages of the EIA process, taken from the Revised Manual, is
reproduced below:

Figure 1-3 Overview of Stages of the Philippine EIA Process 153

1.0 SCREENING Screeningdetermines if a project is covered or not covered by the PEISS. 154 If a project is
covered, screening further determines what document type the project should prepare to
secure the needed approval, and what the rest of the requirements are in terms of EMB
office of application, endorsing and decision authorities, duration of processing.
2.0 SCOPING Scopingis a Proponent-driven multi-sectoral formal process of determining the focused
Terms of Reference of the EIA Study. Scoping identifies the most significant issues/impacts
of a proposed project, and then, delimits the extent of baseline information to those
necessary to evaluate and mitigate the impacts. The need for and scope of an
Environmental Risk Assessment (ERA) is also done during the scoping session. Scoping is
done with the local community through Public Scoping and with a third party EIA Review
Committee (EIARC) through Technical Scoping, both with the participation of the DENR-
EMB. The process results in a signed Formal Scoping Checklist by the review team, with
final approval by the EMB Chief.
EIA STUDY and The EIA Studyinvolves a description of the proposed project and its alternatives,
3.0 REPORT characterization of the project environment, impact identification and prediction,
PREPARATION evaluation of impact significance, impact mitigation, formulation of Environmental
Management and Monitoring Plan, withcorresponding cost estimates and institutional
support commitment. The study results are presented in an EIA Reportfor which an outline
is prescribed by EMB for every major document type
EIA REPORT Review of EIA Reportsnormally entails an EMB procedural screening for compliance with
4.0 REPORT minimum requirements specified during Scoping, followed by a substantive review of
and either composed third party experts commissioned by EMB as the EIA Review Committee
EVALUATION for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical
Committee, for IEE-based applications. EMB evaluates the EIARC recommendations and
the public’s inputs during public consultations/hearings in the process of recommending a
decision on the application. The EIARC Chair signs EIARC recommendations including issues
outside the mandate of the EMB. The entire EIA review and evaluation process is
summarized in the Review Process Report (RPR) of the EMB, which includes a draft
decision document.
5.0 DECISION Decision Making involves evaluation of EIA recommendations and the draft decision
MAKING document, resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a
covered project is issued its certificate of Environmental Compliance Commitment (ECC)
while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC).
Endorsing and deciding authorities are designated by AO 155 42, and further detailed in
this Manual for every report type. Moreover, the Proponent signs a sworn statement of full
responsibility on implementation of its commitments prior to the release of the ECC. 156
The ECC is then transmitted to concerned LGUs and other GAs for integration into their
decisionmaking process. The regulated part of EIA Review is limited to the processes within
EMB control. The timelines for the issuance of decision documents provided for in AO 42
and DAO 2003-30 are applicable only from the time the EIA Report is accepted for
substantive review to the time a decision is issued on the application.
 MONITORING. Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent
6.0 against the ECC and itscommitments in the Environmental Management and Monitoring
VALIDATION, Plans to ensure actual impacts of the project are adequately prevented or mitigated.
and
EVALUATION/
AUDIT

The signing of the Statement of Accountability takes placeat the Decision Making Stage. After a favorable review of its ECC
application, the project proponent, through its authorized representative, is made to sign a sworn statement of full responsibility on
the implementation ofits commitments prior to the official release of the ECC.

The definition of the ECC in the Revised Manual highlights the importance of the signing of the Statement of Accountability:

Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance Commitment to which the Proponent
conforms with, after DENR-EMB explains the ECC conditions, by signing the sworn undertaking of full responsibility over
implementation of specified measures which are necessary to comply with existing environmental regulations or to operate within
best environmental practices that are not currently covered by existing laws. It is a document issued by the DENR/EMB after a
positive review of an ECC application, certifying that the Proponent has complied with all the requirements of the EIS System and has
committed to implement its approved Environmental Management Plan. The ECC also provides guidance to other agencies and to
LGUs on EIA findings and recommendations, which need to be considered in their respective decision-making process. 157 (Emphasis
supplied)

As can be seen, the signing of the Statement of Accountabilityis an integral and significant component of the EIA process and the ECC
itself. The evident intention is to bind the project proponentto the ECC conditions, which will ensure that the project will not cause
significant negative environmental impacts by the "implementation of specified measures which are necessary to comply with
existing environmental regulations or tooperate within best environmental practices that are not currently covered by existing laws."
Indeed, the EIA process would be a meaningless exercise if the project proponent shall not be strictly bound to faithfully comply
withthe conditions necessary toadequately protect the right of the people to a healthful and balanced ecology.

Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s representative in the Statement of
Accountability is necessary for the validity of the ECC. It is not, as RP Energy would have it, a mere formality and its absence a mere
formal defect.

The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP Energy, in the Statement of
Accountability sufficient ground to invalidate the ECC?

Viewed within the particular circumstances of this case, we answer in the negative.

While it is clear that the signing of the Statement of Accountability is necessary for the validity ofthe ECC, we cannot close oureyes to
the particular circumstances of this case. So often have we ruled that this Court is not merely a court of law but a court of justice.
We find that there are several circumstances present in this case which militate against the invalidation of the ECC on this ground.

We explain.

First, the reason for the lack of signature was not adequately taken into consideration by the appellate court. To reiterate, the
matter surfaced during the hearing of this case on clarificatory questions by the appellate court, viz:

J. LEAGOGO:

Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?

Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office
address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in this
Environmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not signed?

MS. MERCADO:
It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This
copy was not signed because during…

J. LEAGOGO:

But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me that your Exhibit "18" is not signed by
Mr. Aboitiz?

MS. MERCADO:

That’s correct, Your Honor.158 (Emphasis supplied)

Due to the inadequacy of the transcriptand the apparent lack of opportunity for the witness to explain the lack of signature, we find
that the witness’ testimony does not, by itself, indicate that there was a deliberate or malicious intent not to sign the Statement of
Accountability.

Second, as previously discussed, the concerned parties to this case, specifically, the DENR and RP Energy, werenot properly apprised
that the issue relative to the lack of signature would be decisive inthe determination of the validity of the ECC. Consequently, the
DENR and RPEnergy cannot be faulted for not presenting proof during the course ofthe hearings to squarely tackle the issue of lack
of signature.

Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature invalidated the ECC,RP Energy
attached, to its Motion for Partial Reconsideration, a certified true copy of the ECC, issued by the DENREMB, which bore the
signature of Mr. Aboitiz. The certified true copy of the ECC showed that the Statement of Accountability was signed by Mr. Aboitiz
on December 24, 2008.159

The authenticity and veracity of this certified true copy of the ECC was not controverted by the Casiño Group in itscomment on RP
Energy’s motion for partial reconsideration before the appellate court nor in their petition before this Court. Thus, in accordance
with the presumption of regularity in the performance of official duties, it remains uncontroverted that the ECC on file with the
DENR contains the requisite signature of Mr. Aboitiz in the Statement of Accountability portion.

As previously noted, the DENR and RPEnergy were not properly apprised that the issue relative to the lack ofsignature would be
decisive in the determination of the validity of the ECC. As a result, we cannot fault RP Energy for submitting the certified true copy
of the ECC only after it learned that the appellate court had invalidated the ECC on the ground of lack ofsignature in its January 30,
2013 Decision.

We note, however, that, as previously discussed, the certified true copy of the Statement of Accountability was signed by Mr. Aboitiz
on December 24, 2008 or two days after the ECC’s official release on December 22, 2008. The aforediscussed rules under the Revised
Manual, however, state that the proponent shall sign the sworn statement of full responsibility on implementation of its
commitments priorto the release of the ECC. Itwould seem that the ECC was first issued, then it was signed by Mr. Aboitiz, and
thereafter, returned to the DENR to serve as its file copy. Admittedly, there is lack of strict compliance with the rules although the
signature ispresent. Be thatas it may, we find nothing in the records to indicate that this was done with bad faith or inexcusable
negligence because of the inadequacy of the evidence and arguments presented, relative to the issue of lack of signature, in view of
the manner this issue arose in this case, as previously discussed. Absent such proof, we are not prepared to rule that the procedure
adopted by the DENR was done with bad faithor inexcusable negligence but we remind the DENR to be more circumspect in
following the rules it provided in the Revised Manual. Thus, we rule that the signature requirement was substantially complied with
pro hac vice.

Fourth, we partly agree with the DENRthat the subsequent letter-requests for amendments to the ECC, signed by Mr. Aboitiz on
behalf of RP Energy, indicate its implied conformity to the ECC conditions. In practical terms, if future litigation should occur due to
violations of the ECC conditions, RP Energy would be estopped from denying its consent and commitment to the ECC conditions
even if there was no signature in the Statement of Accountability. However, we note that the Statement of Accountability precisely
serves to obviate any doubt as to the consent and commitment of the project proponent to the ECC conditions. At any rate, the
aforesaid letter-requests do additionally indicate RP Energy’s conformity to the ECC conditions and, thus, negate a pattern to
maliciously evade accountability for the ECC conditions or to intentionally create a "loophole" in the ECC to be exploited in a possible
futurelitigation over non-compliance with the ECC conditions.
In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the
ECC’s Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the signature
is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP Energy were not
properly apprised of the issue of lack ofsignature in order for them to present controverting evidence and arguments on this point,
as the matter only developed during the course of the proceedings upon clarificatory questions from the appellate court.
Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it learned that the ECC had
been invalidated on the ground of lack of signature in the January 30, 2013 Decision of the appellate court.

The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability portion, was issued by the
DENR-EMB and remains uncontroverted. Itshowed that the Statement of Accountability was signed by Mr. Aboitiz on December 24,
2008. Although the signing was done two days after the official release of the ECC on December 22, 2008, absent sufficient proof, we
are not prepared to rule that the procedure adoptedby the DENR was done with bad faith or inexcusable negligence. Thus, werule
that the signature requirement was substantially complied with pro hac vice.

III.

Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact assessment
(EIA) because of the utilization of inappropriate EIA documents.

Upholding the arguments of the Casiño Group, the appellate court ruled that the first and second amendments tothe ECC were
invalid because the ECC contained an express restriction that any expansion of the project beyond the project description shall be
the subject of a new EIA. It found that both amendments failed to comply with the appropriate EIA documentary requirements
under DAO 2003-30 and the Revised Manual. In particular, it found that the Environmental Performance Report and Management
Plan (EPRMP) and Project Description Report (PDR), which RP Energy submitted tothe DENR, relative to the application for the first
and second amendments, respectively, were not the proper EIA document type. Hence, the appellate court ruled that the aforesaid
amendments were invalid.

Preliminarily, we must state that executive actions carry presumptive validity so that the burden of proof is on the Casiño Group to
show that the procedure adopted bythe DENR in granting the amendments to the ECC were done with grave abuse of discretion.
More so here because the administration of the EIA process involves special technical skill or knowledge which the law has
specifically vested in the DENR.

After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous EIA documents of RP Energy
appearing in the records of this case, we find that the appellate court made an erroneous interpretation and application of the
pertinent rules.

We explain.

As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized the right ofthe people to a healthful
environment.160 Pursuant thereto, in every action, project or undertaking, which significantly affects the quality of the environment,
all agencies and instrumentalities of the national government, including government-owned or -controlled corporations, as well as
private corporations, firms, and entities were required to prepare, file and include a statement (i.e., Environmental Impact
Statement or EIS) containing:

(a) the environmental impact of the proposed action, project or undertaking;

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and
enhancement of the longterm productivity of the same; and

(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use
and commitment are warranted.161
To further strengthen and develop the EIS, PD1586 was promulgated, which established the Philippine Environmental Impact
Statement System (PEISS). The PEISS is "a systems-oriented and integrated approach to the EIS system to ensure a rational balance
between socio-economic development and environmental protection for the benefit of present and future generations." 162 The ECC
requirement ismandated under Section 4 thereof:

SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects. The President of the Philippines may, on his own
initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate
any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by
the President or his dulyauthorized representative. x x x (Emphasis supplied)

The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory for private orpublic projects thatmay
significantly affect the quality of the environment. It involves evaluating and predicting the likely impacts of the project on the
environment, designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect
the environment and the community’s welfare. 163

PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to determine when a project is required to
secure an ECC and when it is not. When an ECC is not required, the project proponent procures a Certificate of Non-Coverage
(CNC).164 As part of the EIA process, the project proponent is required to submit certain studies or reports (i.e., EIA document type)
to the DENR-EMB, which willbe used in the review process in assessing the environmental impact of the project and the adequacy of
the corresponding environmental management plan or program to address such environmental impact. This will then be part of the
bases to grant or deny the application for an ECC or CNC, as the case may be.

Table 1-4 of the Revised Manual summarizes the required EIA document type for each project category. It classifies a project as
belonging to group I, II, III, IV or V, where:

I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or Non-Environmentally Critical Area
(NECA),

II- Non-Environmentally Critical Projects (NECPs) in ECA,

III- NECPs in NECA,

IV- Co-located Projects, and

V- Unclassified Projects.

The aforesaid table then further classifies a project, as pertinent to this case, as belonging to category A,B or C, where:

A- new;

B- existing projects for modification or re-start up; and

C- operating projects without an ECC.

Finally, the aforesaid table considers whether the project is single or co-located. 165 After which, it states the appropriateEIA
document typeneeded for the application for an ECC or CNC, as the case may be.

The appropriate EIA document type vis-à-vis a particular project depends on the potential significant environmental impact of the
project. At the highest level would be an ECP, such as the subject project. The hierarchy of EIA document type, based on
comprehensiveness and detail of the study or report contained therein, insofar as single projects are concerned, is as follows:

1. Environmental Impact Statement166 (EIS),

2. Initial Environmental Examination167 (IEE) Report,

 3. Initial Environmental Examination168 (IEE) Checklist Report,

4. Environmental Performance Report and Management Plan 169 (EPRMP), and

5. Project Description170 (PD) or Project Description Report (PDR).

Thus, in the course of RP Energy’s application for anECC, it was required by the DENR-EMB to submit an EIS because the subject
project is: an ECP, new and a single project.

The present controversy, however, revolves around, not an application for an ECC, but amendments thereto.

RP Energy requested the subject first amendment to its ECC due to its desire to modify the project design through the inclusion of a
barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement
and a 230-kV double transmission line. The DENR-EMB determined that this was a major amendment and, thus, required RP Energy
to submit an EPRMP.

The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct EIA document type based on the
definition of an EPRMP in DAO 2003-30 and the Revised Manual.

In DAO 2003-30, an EPRMP is defined as:

Environmental Performance Report and Management Plan (EPRMP) — documentation of the actual cumulative environmental
impacts and effectiveness of current measures for single projects that are already operating but without ECC's, i.e., Category A-3. For
Category B-3 projects, a checklist form of the EPRMP would suffice; 171 (Emphasis supplied)

Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for "A-2: Existing and to beexpanded (including
undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion) and A-3: Operating
without ECC."

On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document type, thus:

For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for
projects operating without an ECCbut applying to secure one to comply with PD 1586 regulations, the appropriate document is not
an EIS but an EIA Report incorporating the project’s environmental performance and its current Environmental Management Plan.
This report isx x x anx x x Environmental Performance Report and Management Plan (EPRMP) for single project applications x x
x172 (Emphasis supplied)

In its "Glossary," the Revised Manual defines an EPRMP as:

Environmental Performance Report and Management Plan (EPRMP) - documentation of the actual cumulative environmental
impacts and effectiveness of current measures for single projects that are already operating but without ECCs. 173 (Emphasis supplied)

Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-B: Existing Projects for Modification or Re-start
up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC."

From these definitions and tables, an EPRMP is, thus, the required EIA document type for an ECP-single project which is:

1. Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to re-
start with or without expansion);

2. Operating but without ECCs;

3. Operating projects with previous ECCs but planning or applying for clearance to modify/expand orre-start operations;
and

4. Existing projects for modification or re-start up.

It may be observed that, based from the above, DAO2003-30 and the Revised Manual appear to use the terms "operating"and
"existing" interchangeably. In the case at bar, the subject project has not yet been constructed although there have been horizontal
clearing operations at the project site.

On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court — that the EPRMP is not the appropriate
EIA document type— seems plausible because the subject project is not: (1) operating/existing with a previous ECC but planning or
applying for modification or expansion, or (2) operating but without an ECC. Instead, the subject project is an unimplemented or a
non-implemented, hence,non-operating project with a previous ECC but planning for modification or expansion.

The error in the above theory lies in the failure to consider or trace the applicable provisions of DAO 2003-30 and the Revised
Manual on amendments to an ECC.

The proper starting point in determining the validity of the subject first amendment, specifically, the propriety of the EIA document
type (i.e., EPRMP) which RP Energy submitted in relation to its application for the aforesaid amendment, must of necessity be the
rules on amendments to an ECC.174 This is principally found in Section 8.3,Article II of DAO 2003-03, viz:

8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the information
necessary to assess the environmental impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC requirements
shall be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application shall not
exceed thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60)
working days. Provisions on automatic approval related to prescribed timeframes under AO 42 shall also apply for
the processing of applications to amend ECCs. (Emphasis supplied)

Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2, paragraph 16:

16) Application Process for ECC Amendments

Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs. Annex 2-1c provides a decision chart for
the determination of requirements for project modifications, particularly for delineating which application scenarios will require
EPRMP (which will be subject to Figure 2-1 process) or other support documentations (which will be subject to Figure 2-4 process).
Figure 2-4, in turn, provides:

Figure 2-4. Flowchart on Request for ECC Amendments 175

Scenario 1: Request for Minor Amendments Scenario 2: Request for Major Amendments

1. Typographical error 1. Expansion of project area w/in catchment described

in EIA
2. Extension of deadlines for submission of post-
ECC requirement/s 2. Increase in production capacity or auxiliary
component of the original project
3. Extension of ECC validity
3. Change/s in process flow or technology
4. Change in company name/ownership
4. Addition of new product
5. Decrease in land/project area or production
capacity 5. Integration of ECCs for similar or dissimilar but
6. Other amendments deemed contiguous projects (NOTE: ITEM#5 IS PROPONENT’S
OPTION, NOT EMB’S)
"minor" at the discretion of the
EMB CO/RO Director 6. Revision/Reformatting of ECC Conditions

7. Other amendments deemed "major" at the discretion

of the EMB CO/RO Director
1 [Start] 1[Start]
Within three (3) years from ECC issuance (for Within three (3) years from ECC issuance (for projects
projects not started)176 OR at any time during not started)177 OR at any time during project
project implementation, the Proponent prepares implementation, the Proponent prepares and submits to
and submits to the ECC-endorsing DENR-EMB the ECC-endorsing DENR-EMB office a LETTER-
office a LETTER-REQUEST for ECC amendment, REQUESTfor ECC amendments, including
including data/information, reports or documents data/information, reports or documents to substantiate
to substantiate the requested revisions. the requested revisions.
2
For projects that have started implementation, EMB
evaluates request based on Annex 2-1cfor various
scenarios of project modification. Documentary
2
requirements may range from a Letter-Request to an
EPRMP to the EMB CO/RO while for those with
Programmatic ECC, a PEPRMP may need to be
submitted to the EMB CO to support the request. It is
important to note that for operating projects, the
appropriate document is not an EIS but an EIA Report
incorporating the project’s historical environmental
performance and its current EMP, subject to specific
documentary requirements detailed in Annex 2-1cfor
every modification scenario.

The ECC-endorsing EMB office assigns a Case For EPRMP/PEPRMP-based requests, EMB forms a
Handler to evaluate the request Technical/Review Committee to evaluate the request.
For other requests, a Case Handler may solely undertake
the evaluation. EMB CO and RO will process P/EPRMP
for PECC/ECC under Groups I and II respectively. (Go to
Figure 2-1)
3 4

ECC-endorsing Authority decides on the Letter- ECC-endorsing/issuing Authority (per Table 1-4) decides
Request, based on CH recommendation on Letter Requests/EPRMP/PEPRMP/Other documents
based on EMB CH and/or Tech/Review Committee
recommendations.
Maximum Processing Time to Issuance of Decision Max Processing Time to Issuance of Decision
EMB CO 7 workdays CO PEPRMP CO EPRMP RO RO
PEPRMP EPRMP
 EMB RO 7 workdays 120 90 60 30

workdays workdays workdays workdays

  Other document applications: max 30 workdays (EMB
CO and RO)
 

Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process squarely applies to projects not
started, such as the subject project, based on the phrase "[w]ithin three (3) years from ECC issuance (for projects not started) x x x".

Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements For Project Modification." We reproduce below
the first three columns of Annex 2-1c, as are pertinent to the issue at hand:

ANNEX 2-1c

DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION 178

        Proposed Modifications to the         Analysis of Proposed Resulting Decision Document/Type

Current Project     Modifications of EIA Report Required
Operational projects, or those
which have stopped for ≤5 years
and plan to re-start
For Groups I and II EISbased
Projects with an ECC applying for
modification
1. Expansion of land/project Since the modification will be in an ECC Amendment /Letter Request
area w/in catchment or area already described and with brief description of activities
environment described in evaluated in the original EIA in the additional area
the original EIA Report Report, incremental impacts from
additional land development will
have been addressed in the
approved EMP
2. Expansion of land/project It is assumed the modification ECC Amendment /Environmental
area OUTSIDE catchment or proposal may have significant Performance Report and
environment described in potential impacts due to absence Management Plan (EPRMP)
the original EIA Report of prior assessment as to how the
project may affect the proposed
expansion area
3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter Request
auxiliary component of the covered project) threshold is with brief description of additional
original project which will assumed that impacts are not capacity or component
eithernot entail exceedance significant;
of PDR (non-covered
project) thresholds or EMP Modification scenario and decision
& ERA can still address process are applicable to both
impacts & risks arising from nonimplemented and operating
modification projects issued ECCs
4. Increase in capacity or Exceedance of PDR (non-covered) ECC Amendment /Environmental
auxiliary component of the threshold is assumed that impacts Performance Report and
 original project which will may be potentially significant, Management Plan (EPRMP)
either exceed PDR particularly if modification will
(noncovered project) result to a next higher level of
thresholds, or EMP & ERA threshold range
cannot address impacts and
risks arising from Modification scenario and decision
modification process are applicable to both
nonimplemented and operating
projects with or without issued
ECCs
5. Change/s in process flow or EMP and ERA can still address ECC Amendment /Letter Request
technology impacts & risks arising from with brief process description
modification
EMP and ERA cannot address ECC Amendment /Environmental
impacts & risks arising from Performance Report and
modification Management Plan (EPRMP)
6. Additional component or Activity is directly lessening or ECC Amendment /Letter Request
products which will mitigating the project’s impacts on with consolidated Project
enhance the environment the environment. However, to Description Report of new project
(e.g. due to compliance to ensure there is no component in component and integrated EMP
new stringent the modification which fall under
requirements) or lessen covered project types, EMB will
impacts on the require disclosure of the
environment (e.g. thru description of the components and
utilization of waste into process with which the new
new products) product will be developed.
7. Downgrade project size or No incremental adverse impacts; From ECC Amendment to Relief of
area or other units of may result to lower project ECC Commitments (Conversion to
measure of thresholds threshold or may result to non- CNC): /Letter-Request only
limits coverage
8. Conversion to new project Considered new application but New ECC /EIS
type (e.g. bunker-fired plant with lesser data requirements
to gas-fired) since most facilities are
established; environmental
performance in the past will serve
as baseline; However, for
operating projects, there may be
need to request for Relief from
ECC Commitment prior to applying
for new project type to ensure no
balance of environmental
accountabilities from the current
project
9. Integration of ECCs for No physical change in project ECC Amendment /Letter Request
similar or contiguous size/area; no change in with consolidated Project
projects process/technology but improved Description Report and integrated
management of continuous EMP
(Note: Integration of ECCs is projects by having an integrated
at the option of the planning document in the form or
Proponent to an integrated ECC (ECC conditions
request/apply) will be harmonized across
projects; conditions relating to
requirements within other
agencies’ mandates will be
 deleted)
10. Revision/ Reformatting of No physical change on the project ECC Amendment /Letter Request
ECC Conditions but ECC conditions relating to only
requirements within other
agencies’ mandates will be deleted

We now apply these provisions to the case at bar.

To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned change of project design involving the
inclusion of a barge wharf, seawater intake breakwater, subseadischarge pipeline, raw water collection system, drainage channel
improvement and a 230-kV double transmission line. The DENR-EMB determined 179 that the proposed modifications involved a
major amendment because it will result in anincrease in capacity or auxiliary component, as per Scenario 2,Item #2 of Figure 2-4:

Scenario 2: Request for Major Amendments

1. Expansion of project area w/in catchment described in EIA

2. Increase in production capacity or auxiliary component of the original project 180

3. Change/s in process flow or technology

4. Addition of new product

5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)

6. Revision/Reformatting of ECC Conditions

7. Other amendments deemed "major at the discretion of the EMB CO/RO Director

The Casiño Group does not controvert this finding by the DENR-EMB and we find the same reasonably supported by the evidence on
record considering that, among others, the construction of a 230-kVdouble transmission line would result in major activities outside
the project site which could have significant environmental impacts.

Consequently, the amendment was considered asfalling under Item#4 of Annex 2-1c, and, thus, the appropriate EIA document typeis
an EPRMP, viz:

4. Increase in capacity or Exceedance of PDR (non-covered) ECC Amendment /Environmental

auxiliary component of the thresholds is assumed that Performance Report and
original project which will impacts may be potentially Management Plan (EPRMP)182
either exceed PDR (non- significant, particularly if
covered project) thresholds, modification will result to a next
or EMP & ERA cannot address higher level of threshold range
impacts and risks arising from
modification Modification scenario and decision
process are applicable to both
nonimplemented and operating
projects with or without issued
ECCs181

Note that the Chart expressly states that, "[m]odification scenario and decision process are applicable to both non-implementedand
operating projects withor without ECCs." 183 To recall, the subject project has not been constructed and is not yet operational,
although horizontal clearing activities have already been undertaken at the project site. Thus, the subject project may be reasonably
classified as a non-implemented project with an issued ECC, which falls under Item#4 and, hence, an EPRMP is the appropriate EIA
document type.
This lengthy explanation brings us toa simple conclusion. The definitions in DAO 2003-30 and the Revised Manual, stating that the
EPRMP is applicable to (1) operating/existing projectswith a previous ECC but planning or applying for modification or expansion, or
(2) operating projects but without an ECC, were not an exclusive list.

The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the EPRMP can, likewise, be used as an
appropriate EIA document type for a single, non-implemented project applying for a major amendment to its ECC, involving an
increase in capacity or auxiliary component, which will exceed PDR (non-covered project) thresholds, or result in the inability of the
EMP and ERA to address the impacts and risks arising from the modification, such as the subject project.

That the proposed modifications in the subject project fall under this class or type of amendment was a determination made by the
DENR-EMBand, absent a showing of grave abuse of discretion, the DENR-EMB’s findings are entitled to great respect because it is
the administrative agency with the special competence or expertise to administer or implement the EIS System. The apparent
confusion of the Casiño Group and the appellate court is understandable. They had approached the issue with a legal training
mindset or background. As a general proposition, the definition of terms in a statute or rule is controlling as to its nature and scope
within the context of legal or judicial proceedings. Thus, since the procedure adopted by the DENR-EMB seemed to contradict or go
beyond the definition of terms in the relevant issuances, the Casiño Group and the appellate court concluded that the procedure
was infirm.

However, a holistic reading of DAO2003-30 and the Revised Manual will show that such a legalistic approach inits interpretation and
application is unwarranted. This is primarily because the EIA process is a system, not a set of rigid rules and definitions. In the EIA
process, there is much room for flexibility in the determination and use ofthe appropriate EIA document type as the foregoing
discussion has shown.184 To our mind, whatshould be controlling is the guiding principle set in DAO 2003-30 in the evaluation of
applications for amendments to ECCs, as stated in Section 8.3 thereof: "[r]equirements for processing ECC amendments shall
depend on the nature of the requestbut shall be focused on theinformation necessary to assess the environmental impact of such
changes."185

This brings us to the next logicalquestion, did the EPRMP provide the necessary information in order for the DENR-EMB to assess the
environmental impact of RP Energy’s request relative to the first amendment?

We answer in the affirmative.

In the first place, the Casiño Group never attempted to prove that the subject EPRMP, submitted by RP Energy to the DENR-EMB,
was insufficient for purposes of evaluating the environmental impact of the proposed modifications to the original project design.
There is no claim that the data submitted were falsified or misrepresented. Neither was there an attempt to subpoena the review
process documents of the DENR to establish thatthe grant of the amendment to the ECC was done with grave abuse of discretion or
to the grave prejudice of the right to a healthful environment of those who will beaffected by the project. Instead, the Casiño Group
relied solely on the definition of terms in DAO 2003-30 and the Revised Manual, which approach, as previously discussed,was
erroneous.

At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy and wefind therein substantial
sections explaining the proposed changes as well as the adjustments that will be made in the environmental management plan in
order to address the potential environmental impacts of the proposed modifications to the original project design. These are
summarized in the "Project Fact Sheet" 186 of the EPRMP and extensively discussed in Section 4187 thereof. Absent any claim or proof
to the contrary, we have no bases to conclude that these data were insufficient to assess the environmental impact of the proposed
modifications. In accordance with the presumption of regularity in the performance of official duties, the DENR-EMB must be
deemed to have adequately assessed the environmental impact of the proposed changes, before granting the request under the first
amendment to the subject ECC.

In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document type, for major amendments to an ECC,
even for an unimplemented or non-implementedproject with a previous ECC, such as the subject project. Consequently, we find that
the procedure adopted by the DENR, in requiring RP Energy to submitan EPRMP in order to undertake the environmental impact
assessment of the planned modifications to the original project design, relative to the first amendment to the ECC, suffers from no
infirmity.

We apply the same framework of analysis in determining the propriety of a PDR, as the appropriate EIA document type, relative to
the second amendment to the subject ECC.
Again, the Casiño Group, as sustained by the appellate court, relied on the definitions of a PDR in DAO 2003-30 and the Revised
Manual:

Project Description (PD) — document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw
materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed
project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction,
construction, operation and abandonment phases. It is tobe used for reviewing co-located and single projects under Category C,
aswell as for Category D projects.188

xxxx

a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project Description Report (PDR) is the appropriate
document to secure a decision from DENR/EMB. The PDR is a "must" requirement for environmental enhancement and mitigation
projects in both ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign nature of proposed operations for
eventual issuance of a Certificate ofNon-Coverage (CNC). All other Group III (non-covered) projects do not need to submit PDRs –
application is at the option of the Proponent should it need a CNC for its own purposes, e.g. financing pre-requisite. For Group V
projects, a PDR is required to ensure new processes/technologies or any new unlisted project does not pose harm to the
environment. The Group V PDR is a basis for either issuance of a CNC or classification of the project into its proper project group.

b) For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for
projects operating without an ECC but applying to secure oneto comply with PD 1586 regulations, the appropriate document is not
an EIS but an EIA Report incorporating the project’s environmental performance and its current Environmental Management Plan.
This report is either an (6) Environmental Performance Report and Management Plan (EPRMP) for single project applications or a (7)
Programmatic EPRMP (PEPRMP) for co-located project applications. However, for small project modifications, an updating of the
project description or the Environmental Management Plan with the use of the proponent’s historical performance and monitoring
records may suffice.189

xxxx

Project Description (PD) - document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw
materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed
project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction,
construction, operation and abandonment phases.190

We will no longer delve intothe details of these definitions. Suffice it to state, similar to the discussion on the EPRMP, that if we go
by the strict limits of these definitions, the PDR relative to the subject second amendment would not fall squarely under any of the
above.

However, again, these are not the only provisions governing the PDR in the Revised Manual.

After the favorable grant of the first amendment, RP Energy applied for another amendment to its ECC, this time inconsideration of
its plan to change the configuration of the project from 2 x 150 MWto 1 x 300 MW. In practical terms, this meant that the subject
project will still produce 300 MW of electricity but will now make use of only one boiler (instead of two) to achieve greater efficiency
in the operations of the plant. The DENR-EMB determined 191 this amendment to be minor, under Scenario 1, Item#6 of Figure 2-4:

Scenario 1: Request for Minor

Amendments

1. Typographical error

2. Extension of deadlines for submission of post-ECC requirement/s

3. Extension of ECC validity

4. Change in company name/ownership

 5. Decrease in land/project area or production capacity

6. Other amendments deemed "minor" at the discretion of the EMB CO/RO Director 192

— because (1) there is no increase in capacity; (2) it does not constitute any significant impact; and (3) its EMP and ERA as specified
in the submitted EPRMP remain the same.193 Relative to Annex 2-1c, the requested amendment was, in turn, determinedto fall
under Item#3:

3. Increase in capacity or Non-exceedance of PDR (non ECC Amendment /Letter Request

auxiliary component of the covered project) thresholds is with brief description of additional
original project which will assumed that impacts are not capacity or component195
either not entail exceedance significant;
of PDR (non-covered project)
thresholds or EMP & ERA can Modification scenario and decision
still address impacts & risks process are applicable to both
arising from modification non-implemented and operating
projects issued ECCs194

We make the same observation, as before, that the above applies to an unimplemented or non-implemented project with a previous
ECC, like the subject project. Although it may be noted thatthe proposed modification does not squarely fall under Item#3,
considering that, as previously mentioned,there will be no increase in capacity relative to the second amendment, still, we find
nothing objectionable to this classification by the DENR-EMB, for it seems plain enough that this classification was used because the
modification was deemed too minor to require a detailed project study like an EIS or EPRMP. Since this is the classification most
relevant and closely related to the intended amendment, following the basic precept that the greater includes the lesser, the DENR-
EMB reasonably exercised its discretion in merely requiring a letter request with a brief description of the modification.

As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable to such minor modifications. Thus, the
DENR-EMB cannot be faulted for requiring RPEnergy to submit a PDR relative to its application for the second amendment.
Consequently, as before, we findthat the Revised Manual supports the procedure adopted by the DENR-EMB in requiring RP Energy
to submit a PDR in order to assess the environmental impact of the planned modifications relative to the second amendment.

In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is nothing in the Project Description Report that
provides an environmental impact assessment of the effects of constructing and operating a single 300-MW generating
unit."196 However, to our dismay, as in their other serious allegations in their Petition for Writ ofKalikasan, the same is, likewise,
baseless. Apart from such a sweeping claim, the Casiño Group has provided no evidence or argument to back up the same.

An examination of the PDR readily reveals that it contains the details of the proposed modifications 197 and an express finding that no
significant environmental impact will be generated bysuch modifications, as in fact it is expected that the operation of the power
plant will become more efficient as a result of the change from 2 x 150 MW to 1 x 300 MW configuration. 198 Consequently, the PDR
merely reiterates the same mitigating measures that will presumably address the minor modifications to the project design. Again,
no evidence was presented to show substantial errors or misrepresentations in these data or their inadequacy for providing the
bases for the DENR-EMB to assess the environmental impact of the proposed modifications under the second amendment.

In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain the procedure adoptedby the DENR-
EMB in requiring RP Energy to submit a PDR and, on the basis thereof, approving the request for the second amendment.

In another vein, we note that the appellate court proceeded from the erroneous premise that the EIA is a document, when it
repeatedly stated that the amendments to the ECC require a new EIA, and not merely an EPRMP or PDR. The appellate court relied
on the provisoin the ECC, which stated that "[a]ny expansion of the project beyond the project description or any change in the
activity or transfer of location shall besubject to a new Environmental Impact Assessment." 199

However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document but a process:

Environmental Impact Assessment (EIA) — processthat involves evaluating and predicting 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 enhancement measures addressing these consequences to protect the
environment and the community's welfare.The process is undertaken by, among others, the project proponent and/orEIA
Consultant, EMB, a Review Committee, affected communities and other stakeholders. 200 (Emphasis supplied)

When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this simply means that the project proponent shall
be required to submit such study or report, as warranted by the DENR Rules and circumstances, which will sufficiently aid the DENR
in making a new EIA and, thus, determine whether to grant the proposed amendment (or project modification). Aswe have seen,
consistent with DAO 2003-30 and the Revised Manual, the DENR required RP Energy to submit an EPRMP and a PDR relative to the
latter’s request involving the first and second amendments, respectively, which led to the new EIA of the project in compliance with
the provisoof the ECC.

Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the DENR to assess the environmental impact
of a particular project. These documents are flexibly used by the DENR, as the circumstances warrant, in order to adequately assess
the impacts of a new project or modifications thereto. Being the administrative agency entrusted with the determination of which
EIA document type applies to a particular application for an amendment to an ECC, falling as it does within its particular technical
expertise, wemust accord great respect to its determination, absent a showing of grave abuse of discretion or patent illegality.

In sum, we find that the appellate court erred when it ruled that the first and second amendments to the subject ECC wereinvalid for
failure to comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. The appellate court failed to properly
consider the applicable provisions in DAO 2003-30 and the Revised Manual on amendments to ECCs. Our examination of the
provisions on amendments to ECCs, as well as the EPRMP and PDR themselves, shows that the DENR reasonably exercised its
discretion in requiring an EPRMP and a PDR for the first and second amendments, respectively. Through these documents, which the
DENR reviewed, a new EIA was conducted relative to the proposed project modifications. Hence, absent sufficient showing of grave
abuse of discretion or patent illegality, relative to both the procedure and substance of the amendment process, we uphold the
validity of these amendments.

IV.

Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the issuance of anECC and the
lack of its prior issuance rendered the ECC invalid.

The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is invalid because the CNO covering the
subject project was issued only on October 31, 2012 or almost fouryears from the timeof issuance of the ECC. Thus, the ECC was
issued in violation of Section 59 of the IPRA Law and its implementing rules which require that a CNO be obtained prior to the
issuance of a government agency of, among others, a license or permit. In so ruling, the appellate court implicitly upheld the Casiño
Group’s argument that the ECC is a form of government license or permit pursuant to Section 4 of PD 1586 which requires all entities
to securean ECC before (1) engaging in an environmentally critical project or (2) implementing a project within an environmentally
critical area.

The DENR and RP Energy, however, argue that an ECC is not the license or permit contemplated under Section 59 of the IPRA Law
and its implementing rules as may be deduced from the definition, nature and scope of an ECC under DAO 2003-03 and the Revised
Manual. The DENR explains that the issuance of an ECC does not exempt the project proponent from securing other permits and
clearances as required under existing laws, including the CNO, and that the final decision on whether a project will be implemented
lies with the concerned local government unit/s or the lead government agency which has sectoral mandate to promote the
government programwhere the project belongs.

We agree with the DENR and RP Energy.

Section 59, Chapter VIII of the IPRA Law provides:

SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from
issuing, renewing, or granting any concession,license or lease, or entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap with any ancestral domain.Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification
shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That
no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right
to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.
(Emphasis supplied)

While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP) Administrative Order No. 01-98 201 states:

SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses. —

a. Need for Certification. No department of government or other agencies shall issue, renew or grant anyconcession,
license, lease, permit, or enter into any production sharing agreement without a prior certification from the NCIP that the
area affected does not overlap any ancestral domain.

b. Procedure for Issuance ofCertification by NCIP.

1) The certification, above mentioned, shall be issued by the Ancestral Domain Office, only after a field based
investigation that such areas are not within any certified or claimed ancestral domains.

2) The certification shall be issued only upon the free, prior, informed and written consent of the ICCs/IPs who will
be affected by the operation of such concessions, licenses or leases or production-sharing agreements. A written
consent for the issuance of such certification shall be signed by at least a majority of the representatives of all the
households comprising the concerned ICCs/IPs. (Emphasis supplied)

As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the issuance of any concession, license, lease
or agreement over natural resources, a certification issued by the NCIP that the area subject thereof does not lie within any
ancestral domain.202 This is in keeping with the State policy to protect the rights of Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) to their ancestral domains in order to ensure their economic, social and cultural well-being as well as to recognize
the applicability of customary laws governing property rights or relations in determining the ownership and extent of such ancestral
domain.203

The IPRA Law and its implementing rules do not define the terms "license" and "permit" so that resort to their plain or ordinary
meaning in relation to the intendment of the law is appropriate.

A "license" has been defined as "a governmental permission to perform a particular act (such as getting married), conduct a
particular business or occupation, operate machinery or vehicles after proving capacity and ability to do so safely, or use property for
a certain purpose"204 while a "permit" has been defined as "a license or other document given by an authorized public official or
agency (building inspector, department ofmotor vehicles) to allow a person or business to perform certain acts." 205

The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or permit, is to prevent the
implementation of a project that may impair the right of ICCs/IPs to their ancestral domains. The law seeks to ensure that a project
willnot overlap with any ancestral domain prior to its implementation and thereby pre-empt any potential encroachment of, and/or
damage to the ancestral domains of ICCs/IPs without their prior and informed consent.

With these considerationsin mind, we now look atthe definition, nature and scope of an ECC in order to determine if it falls within
the ambit of a "license" or "permit" to which the CNO requirement, under Section 59 of the IPRA Law and its implementing rules,
finds application. Section 4 of PD 1586 provides, in part:

SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The President of the Philippines may, on his
own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate
any suchdeclared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by
the President orhis duly authorized representative.For the proper management of said critical project or area, the President may by
his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-
alignment of government personnel, and their specific functionsand responsibilities. (Emphasis supplied)

While the above statutory provision reveals that the ECC is an indispensable requirement before (1) the conduct of an
environmentally critical project or (2) the implementation of a project inan environmentally critical area, it does not follow that the
ECC is the "license" or "permit" contemplated under Section 59 of the IPRA Law and its implementing rules.
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise:

SECTION 3. Definition of Terms. —

For the purpose of this Order, the following definitions shall be applied:

xxxx

d. Environmental Compliance Certificate (ECC) — document issued by the DENR/EMB after a positive review of an ECC application,
certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant
negative environmental impact. The ECC also certifies that the proponent has complied with all the requirements of the EIS System
and has committed to implement its approved Environmental Management Plan. The ECC contains specific measures and conditions
that the project proponent has to undertake beforeand during the operation of a project, and in some cases, during the project's
abandonment phase to mitigate identified environmental impacts.

In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part:

3) Purpose of the EIA Process

As a basic principle, EIA is used to enhance planning and guide decisionmaking. In this Manual, EIA is primarily presented in the
context of a requirement to integrate environmental concerns in the planning process of projects at the feasibility stage. Through
the EIA Process, adverse environmental impacts of proposed actions are considerably reduced through a reiterative review process
of project siting, design and other alternatives, and the subsequent formulation of environmental management and monitoring
plans. A positive determination by the DENR-EMB results to the issuance of an Environmental Compliance Commitment (ECC)
document, to be conformed to by the Proponent and represents the project’s Environmental Compliance Certificate. The release of
the ECC allows the project to proceed to the next stage of project planning, which is the acquisition of approvals from other
government agencies and LGUs, after which the project can start implementation.

xxxx

6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent upon the EIA Process to undertake a comprehensive
and integrated approach in the review and evaluation of environment-related concerns of government agencies (GAs), local
government units (LGUs) and the general public. The subsequent EIA findings shall provide guidance and recommendations to these
entities as a basis for their decision making process.

a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29 government agencies wherein ECC of covered
projects was agreed to be a prerequisite of all other subsequent government approvals;

b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the intent of the MOA and reinforces the
role of the ECC/CNC as a guidance document to other agencies and LGUs, as follows:

i) "No permits and/or clearances issued by other National Government Agencies and Local Government Units shall
be required in the processing of ECC or CNC applications.

ii) The findings and recommendations ofthe EIA shall be transmitted to relevant government agencies for them to
integrate in their decision making prior to the issuance of clearances, permits and licenses under their mandates.

iii) The issuance of an ECC or CNC for a project under the EIS System does not exempt the Proponent from securing
other government permits and clearances as required by other laws. The current practice of requiring various
permits, clearancesand licenses only constrains the EIA evaluation process and negates the purpose and function
of the EIA."

iv) Henceforth, all related previous instructions and other issuances shall be made consistent with the Circular.
 c) "Permits, licenses and clearances" are inclusive of other national and local government approvals such as endorsements,
resolutions, certifications, plans and programs, which have to be cleared/approved or other government documents
required within the respective mandates and jurisdiction of these agencies/LGUs.

xxxx

f) The final decision whether a project will be implemented or not lies either with the LGUs who have spatial jurisdiction over the
project or with the lead government agency who has sectoral mandate to promote the government program where the project
belongs, e.g. DOE for energy projects; DENR-MGB for mining projects.(Emphasis supplied)

As can be seen, the issuance of the ECC does not, by and of itself, authorize the implementation of the project. Although it is
indispensable before the covered project can be commenced, asper Section 4 of PD 1586,the issuanceof the ECC does not, as of yet,
result inthe implementation of the project. Rather, the ECC is intended to, among others, provide guidance or act as a decision-
making tool to other government agencies and LGUs which have the final authority to grant licenses or permits, such as building
permits or licenses to operate, that will ultimately result in, or authorize the implementation of the project or the conduct of specific
activities.

As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not required to be obtained prior to the
issuance of an ECC. As previously discussed, Section 59 aims to forestall the implementation of a project that may impair the right of
ICCs/IPs totheir ancestral domains, by ensuring or verifying that a project will not overlap with any ancestral domain prior to its
implementation. However, because the issuance of an ECC does not result in the implementation of the project, there is no necessity
to secure a CNO prior to an ECC’s issuance as the goal orpurpose, which Section 59 seeks to achieve, is, at the time of the issuance of
an ECC, not yet applicable.

In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules.
Hence, there is no necessity to secure the CNO under Section 59 before an ECC may be issued and the issuance of the subject ECC
without first securing the aforesaid certification does not render it invalid.

V.

Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a precondition to the consummation of the
Lease and Development Agreement (LDA) between SBMA and RP Energy and the lack of its prior issuance rendered the LDA invalid.

We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into between the SBMA and RP Energy on June 8,
2010. Similar to the ECC, the LDA was entered into prior to the issuance ofthe CNO on October 31, 2012.

Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no longer necessary in the instant case, to wit:

1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease agreement with HHIC 206 -Philippines, Inc. and a
CNO was already issued therefor which, for all intents and purposes, is applicable to the area leased by RP Energy being
part of contiguous lots in Redondo Peninsula.

2. The site of the power plant project is very distant from the boundaries of the lone area at the Subic Bay Freeport Zone
covered by an Aeta Community’s Certificate of Ancestral Domain Title (CADT).

3. There was no indigenous community within the vicinity of the project area as stated in RP Energy’s EIS.

4. The land where the project is located was subsequently classified as industrial by the SBMA. 5. The scoping/procedural
screening checklist classified as "not relevant" the issue of indigenous people.

6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she visited the project site ten or more
times and did not see any Aeta communities there.

7. Mr. Evangelista testified that the project site used to be a firing range of the U.S. Armed Forces which would make it
impossible to be a settlement area of indigenous communities.
 8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the start of negotiations on the LDA,
the SBMA Ecology Center verified with the NCIP that there was no application for said area to be covered by a CADT.

RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the NCIP. On October 31, 2012, the NCIP
issued the subject CNO over the project site, which should erase any doubt as to whether it overlaps with an ancestral domain.

Upholding the arguments of the Casiño Group, the appellate court ruled that SBMA failed to comply with the CNO requirement and,
thus, the LDA entered into between SBMA and RP Energy is invalid. It rejected the reasons given by SBMA and RP Energy, to wit:

1. RP Energy’s reliance on its own field investigation that no indigenous community was found within the vicinity is
unavailing because it was not the field investigation by the NCIP required by the IPRA Law.

2. RP Energy acknowledged that Aetas were among the earliest settlers in the municipality where the project will be built.
Hence, it was not clearly shown that in 2008, at the time the LDA was entered into, there were no indigenouscommunities
in the project site.

3. SBMA’s representation that the project site is industrial relies on a letter dated March 5, 2008 and the scoping checklist,
which are hearsay evidence.

4. The statements of Atty. Rodriguez have no probative value because he is not an officer of SBMA Ecology Center oran
officer of NCIP.

5. At the time the CNO was issued on October 31, 2012, and the field investigation relative thereto was conducted by the
NCIP, the project site no longer reflected the actual condition on December 22, 2008 when the LDA was entered into
because the households which occupied the site had already been relocated by then.

6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly did not do the same with respect to
the lease agreement with RP Energy, considering that both leases cover lands located within the same peninsula. RP Energy
appears to have been accorded a different treatment.

7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant project because the two projects are
situated in different locations: the HHIC project is located in Sitio Agusuhin,while the power plant project is located in Sitio
Naglatore.

While we agree with the appellate court that a CNO should have been secured prior to the consummation of the LDA between
SBMAand RP Energy, and not after, as was done here, we find that, under the particular circumstances of this case, the subsequent
and belated compliance withthe CNO requirement does not invalidate the LDA.

For convenience, and as starting point of ouranalysis, we reproduce Section 59 of the IPRA Law below:

SEC. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from
issuing, renewing, or granting any concession, license or lease, or entering into any productionsharing agreement, without prior
certification from the NCIP that the area affected does not overlap with any ancestral domain.Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification
shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That
no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right
to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.
(Emphasis supplied)

The law is clear but its actual operation or application should not be interpreted beyond the bounds of reason or practicality.

We explain.

Indeed, a CNO is required prior to the grant of a lease by all government agencies, including the SBMA. Again, the evident intention
is to prevent the impairment of the right of ICCs/IPs to their ancestral domains. A lease, such as the LDA under consideration, would
result in, among others, granting RP Energy the right to the use and enjoyment of the project site to the exclusion of third
parties.207 As such, the lease could conceivably encroach on an ancestral domain if the CNO is not first obtained.

However, implicit in the operation of Section 59 is the practical reality that the concerned government agency must make a
preliminary determinationon whether or not to obtain the required certification in the first place. To expound, a government
agency, which wishes to lease part of its property located near Padre Faura Street, Manila City could not, and should not be
reasonably expected to obtain the CNO, as it is obviously inapplicable to its planned lease. In contrast, a government agency, which
intends to lease a property in a valley or mountainous region, where indigenous communities are known to reside, conduct hunting
activities, perform rituals, or carry out some other activities, should be reasonably expected to secure the CNO prior to
consummating the planned lease with third persons.

Even if the indigenous community does not actuallyreside on the proposed lease site, the government agency would still be required
to obtain the CNO preciselyto rule out the possibility that the proposed lease site encroaches upon an ancestral domain. The reason
for this is that an ancestral domain does not only cover the lands actually occupied by an indigenous community, but all areas where
they have a claim of ownership, through time immemorial use, such as hunting, burial or worship grounds and to which they have
traditional access for their subsistence and other traditional activities. 208

The wording of the law itself seems to presuppose that if the concession, lease, license or production-sharing agreement is over
natural resources, then the CNO should be first obtained. This is because the lastterm, "production-sharing agreement," normally
refers to natural resources. But the problem arises as to what should be considered "natural resources"; for a vacant lot, nearPadre
Faura Street, or a forest land, in Mt. Banahaw, could both beconsidered as "natural resources," depending on the restrictive or
expansive understanding of that term.

After due consideration, we find that the proper rule of action, for purposes of application of Section 59, is that all government
offices should undertake proper and reasonable diligence in making a preliminary determination on whether to secure the CNO,
bearing in mind the primordial State interest in protecting the rights of ICCs/IPs to their ancestral domains. They should consider the
nature and location of the areas involved; the historical background of the aforesaid areas relative to the occupation, use or claim of
ownership by ICCs/IPs; the present and actual condition of the aforesaid areas likethe existence of ICCs/IPs within the area itself or
within nearby territories; and such other considerations that would help determine whether a CNO should be first obtained prior to
granting a concession, lease, license or permit, or entering into a production-sharing agreement.

If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present or a claim of ownership may be
asserted in the future, no matter how remote, the proper and prudent course ofaction is to obtain the CNO. In case of doubt, the
doubt should be resolved in favor of securing the CNO and, thus, the government agency is under obligation tosecure the aforesaid
certification in order to protect the interests and rights of ICCs/IPs to their ancestral domains. This must be so if we are to accord the
proper respect due to, and adequately safeguard the interests and rights of, our brothers and sisters belonging to ICCs/IPs in
consonance with the constitutional policy209 to promote and protect the rights of ICCS/IPs as fleshed out in the IPRA Law and its
implementing rules.

In the case at bar, we find, applying this rule of action, that the SBMA should have first secured a CNO before entering into the LDA
with RP Energy for the following reasons.

First, the Subic area is historicallyknown to be the home of our brothers and sisters belonging to the Aeta communities. In particular,
the EIS210 itself of RP Energy noted that Aeta communities originally occupiedthe proposed project site of the power plant. Thus,
even if we assume that, at the time of the ocular inspection of the proposed project site in 2008, there were no Aeta communities
seen thereat, as claimed by RP Energy, the exercise of reasonable prudence should have moved SBMA and RP Energy to secure a
CNO in order to rule out the possibility that the project site may overlap with an ancestral domain. This is especially so, in view of the
observation previously made, that lack of actual occupation by an indigenous community ofthe area does not necessarily mean that
it is not a part of anancestral domain because the latter encompasses areas that are not actually occupied by
indigenouscommunities but are used for other purposes like hunting, worship or burial grounds.

Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP that the project site does not overlap with
an ancestral domain. However, the person, who allegedly did the verification, and the officer from the NCIP, who was contacted in
this alleged verification, were not presented in court. Assuming that this verification did take place and that the SBMA Ecology
Center determined that there is no pendingapplication for a CADT covering the project site and that the presently recognized CADT
of Aeta communities is too far away from the project site, it still does not follow that the CNO under Section 59 should have been
dispensed with. The acts of individual members ofa government agency, who allegedly checked with the NCIP that the project site
does not overlap with an ancestral domain, cannot substitute for the CNO required by law. The reason is obvious. Such posture
would circumvent the noble and laudable purposes of the law in providing the CNO as the appropriate mechanism in order to validly
and officially determine whether a particular project site does not overlap with an ancestral domain. It would open the doors to
abuse because a government agency can easily claim that it checked with the NCIP regarding any application for an ancestral domain
over a proposed project site while stopping short of securing a CNO. To reiterate, the legally mandated manner to verify if a project
site overlaps with an ancestral domain is the CNO,and not through personal verification by members of a government agency with
the NCIP.

Third, that the project site was formerlyused as the firing range of the U.S. Armed Forces does not preclude the possibility that a
present orfuture claim of ancestral domain may be made over the aforesaid site. The concept of an ancestral domain indicates that,
even if the use ofan area was interrupted by the occupation of foreign forces, it may still be validly claimed to be an ancestral
domain.211

Fourth, that the project site was subsequently classified by the SBMA as forming part of an industrial zone does not exempt it from
the CNO requirement. The change in the classification of the land is not an exception to the CNO requirement under the IPRA Law.
Otherwise, government agencies can easily defeat the rights of ICCs/IPs through the conversion of land use.

Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be applicable to RP Energy. However,
ascorrectly ruled by the appellate court, the CNO issued to HHIC’s shipyard cannot be extended to RP Energy’s project site because
they involve two different locations although found within the same land mass. The CNO issued in favor of HHIC clearly states that
the findings in the CNO are applicable only to the shipyard location of HHIC. Last, the steps taken by SBMA, in securing a CNO prior
to its lease agreement with HHIC, was the proper and prudent course of action that should have been applied to the LDA with RP
Energy. It does notmatter that HHIC itself asked for the CNO prior to entering into a lease agreement with SBMA, as claimed by
SBMA, while RP Energy did not make such a request because, as we have discussed, SBMA had the obligation, given the surrounding
circumstances, to secure a CNO in order to rule out the possibility that the project site overlapped with an ancestral domain.

All in all, we find, applying the foregoing rule of action,that SBMA should have secured a CNO before entering into the LDA with RP
Energy. Considering that Section 59 is a prohibitory statutory provision, a violation thereof would ordinarily result in the nullification
of the contract.212 However, we rule that the harsh consequences of such a ruling should not be applied to the case at bar.

The reason is that this is the first time that we lay down the foregoing rule of action so much so that it would be inequitable to
retroactively apply its effects with respect to the LDA entered into between SBMA and RPEnergy. We also note that, under the
particular circumstances of this case, there is no showing that SBMA and RP Energy had a deliberate or ill intent to escape, defeat or
circumvent the mandate of Section 59 of the IPRA Law. On the contrary, they appear to have believed in good faith,
albeiterroneously, that a CNO was no longer needed because of the afore-discussed defenses they raised herein. When the matter
of lack of a CNO relative to the LDA was brought to their attention, through the subject Petition for Writ ofKalikasan filed by the
Casiño Group, RP Energy, with the endorsement of SBMA, promptly undertook to secure the CNO, which was issued on October 31,
2012 and stated that the project site does not overlap with any ancestral domain. 213

Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP Energy acted inbad faith or with inexcusable
negligence, considering that the foregoing rule of action has not heretofore been laiddown by this Court. As a result, we hold that
the LDA should notbe invalidated due to equitable considerations present here.

By so ruling, we clarify that we reject RP Energy’s claim that the belated submission of the CNO is an "over compliance" on its part.
Quite the contrary, as we have discussed, the CNO should have been first secured given the surrounding circumstances of this case.

In the same vein, we reject SBMA’s argument thatthe belated application for, and submission of the CNO cured whatever defect the
LDA had. We have purposely avoided a ruling to the effect that a CNO secured subsequent to the concession, lease, license, permit
or production-sharing agreement will cure the defect. Such a ruling would lead to abuse of the CNO requirement since the defect
can be cured anyway by a subsequent and belated application for a CNO. Government agencies and third parties, either through
deliberate intent or negligence, may view it as an excuse not to timely and promptly secure the CNO, even when the circumstances
warrant the application for a CNO under the aforediscussed rule of action, tothe damage and prejudice of ICCs/IPs. Verily, once the
concession, lease, license or permit is issued, or the agreement is entered into without the requisite CNO, consequent damages will
have already occurred if it later turns out that the site overlaps with anancestral domain. This is so even if the ICCs/IPs can have the
project stopped upon discovery thatit overlapped with their ancestral domain under the last proviso 214 of Section 59. To prevent this
evil, compliance with the CNO requirement should be followed through the aforediscussed rule of action.
In sum, we rule that a CNO should have been secured prior to the consummation of the LDA between SBMA and RP Energy.
However, considering that this is the first time we lay down the rule of action appropriate to the application of Section 59, we refrain
from invalidating the LDA due to equitable considerations.

VI.

Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e., approval of the concerned sanggunianrequirement) is
necessary prior to the implementation of the power plant project.

Sustaining the arguments ofthe Casiño Group, the appellate court ruled that the subject project cannot beconstructed and operated
until after the prior approval of the concerned sanggunianrequirement, under Section 27 of the LGC, is complied with. Hence, the
ECC and LDA could not be validly granted and entered into without first complying with the aforesaid provision. It held that all the
requisites for the application of the aforesaid provision are present. As to the pertinent provisions of RA 7227 or "TheBases
Conversion and Development Act of 1992," which grants broad powers of administration to the SBMA over the Subic Special
Economic Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision recognizing the basic autonomy ofthe LGUs which
joined the SSEZ. Thus, the LGC and RA 7227should be harmonized whereby the concerned sanggunian’spower to approve under
Section 27 must be respected.

The DENR impliedly agrees with the Casiño Group that compliance with Section 27 is still required but without clearly elaborating its
reasons therefor.

The SBMA and RP Energy, however, argue that the prior approval of the concerned sanggunianrequirement, under Section 27, is
inapplicable to the subject project because it is located within the SSEZ. The LGC and RA 7227 cannot be harmonized because of the
clear mandate of the SBMA to govern and administer all investments and businesses within the SSEZ. Hence, RA 7227 should be
deemed as carving out an exception to the prior approval of the concerned sanggunianrequirement insofar as the SSEZ is concerned.

We agree with the SBMA and RP Energy.

Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1) prior consultations and (2) prior
approval of the concerned sanggunian,viz:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological 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 cropland, rangeland, or
forest cover, and extinction of animal or plant species, to consult with the local government units, non governmental organizations,
and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the peopleand the
community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the
adverse effects thereof. (Emphasis supplied)

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. (Emphasis supplied)

In the case at bar, the Casiño Group only questions the alleged lack of the prior approval of the concerned sanggunians under
Section 27 of the LGC. Thus, we shall limit our discussion to the resolution of this issue. (Parenthetically, we note that prior
consultations, as required by Section 26 of the LGC, appear to have been complied with. This may begleaned from the EIS of
RPEnergy which contains the documentation of the extensive public consultations held, under the supervision of the DENR-EMB,
relative to the subject project, as required by the EIA process, 215 as well as the socialacceptability policy consultations conducted by
the SBMA, which generated the document entitled "Final Report: Social Acceptability Process for RP Energy, Inc.’s 600-MW Coal
Plant Project," as noted and discussed in an earlier subsection. 216)

We also note that the Casiño Group argues that the approval of the concerned sanggunian requirement was necessary prior to the
issuance of the ECC and the consummation of the LDA; the absence of which invalidated the ECC and LDA.

We shall no longer discuss at length whether the approval of the concerned sanggunian requirement must be complied with prior to
the issuance of an ECC. As discussed in an earlier subsection, the issuance of an ECC does not, by itself, result in the implementation
of the project. Hence, the purpose or goal of Sections 26 and 27 of the LGC,like Section 59 of the IPRA Law, does not yet obtain and,
thus, the ECC may be issued evenwithout prior compliance with Sections 26 and 27 of the LGC.

We, thus, limit the discussion as to whether the approval of the concerned sanggunian requirement should have been complied with
prior to the consummation of the LDA, considering that the LDA is part of the implementation of the subject project and already
vests in RP Energy the right to the use and enjoyment of the project site, asin fact horizontal clearing activities were already
undertaken by RP Energy at the project site by virtue of the LDA.

The prior approval of the concerned sanggunian requirement is an attribute and implementation of the local autonomy granted to,
and enjoyed by LGUs under the Constitution.217 The LGU has the duty to protect its constituents and interests in the implementation
of the project. Hence, the approval of the concerned sanggunian is required by law to ensure thatlocal communities partake in the
fruits of their own backyard.218

For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the planning and implementation of the
project or program is vested in a national agency or government-owned and-controlled corporation, i.e., national programs and/or
projects which are to be implemented in a particular local community; and (2) the project or program may cause pollution, climatic
change, depletion of non-renewable resources, loss of cropland, rangeland, or forest cover, extinction of animal or plant species, or
call for the eviction of a particular group of people residing in the locality where the project will be implemented. 219

In the case at bar, the two requisites are evidently present: (1) the planning and implementation of the subject project involves the
Department of Energy, DENR, and SBMA; and (2) the subject project may cause pollution, climatic change, depletion of non-
renewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species,or call for the eviction of
a particular group of people residing in the locality where the project will be implemented. Hence, Section 27 of the LGC should
ordinarily apply.

It is not disputed that no approval was sought from the concerned sangguniansrelative to the subject project.1a\^/phi1 Whatis
more, the affected LGUs have expressed their strong oppositions to the project through various sanggunian resolutions. 220 However,
it is also undisputed that the subject project is located within the SSEZ and, thus, under the territorial jurisdiction of the SBMA
pursuant to RA 7227.

Thus, we are tasked to determine the applicability of the prior approval of the concerned sanggunian requirement, under Section 27
of the LGC, relative to a project within the territorial jurisdiction of the SBMA under RA 7227.

RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and the closure of the Subic Naval Base
ofthe U.S. Armed Forces. It sought to revivethe affected areas by creating and developing the SSEZ into a "self-sustaining industrial,
commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and
promote productive foreign investments." 221 The SSEZ covered the City of Olangapo and Municipality of Subic in the Province
ofZambales and the lands and its contiguous extensions occupied by the former U.S. Naval Base, which traversed the territories of
the Municipalities of Hermosa and Morong in the Province of Bataan. Under Section 12 of RA 7227, the creation of the SSEZ was
made subject to the concurrence by resolution of the respective sanggunians of the City of Olongapo and the Municipalities of Subic,
Morong and Hermosa, viz:

SECTION 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of the sangguniang panlungsod of the City of
Olongapo and the sangguniang bayanof the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special
Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands
occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the
Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to as the Subic Special Economic Zone whose metes
and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the
approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to
the office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of
the Zone as provided herein.

Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence and the President issued Presidential
Proclamation No. 532, Series of 1995, defining the metes and bounds of the SSEZ.

In Executive Secretary v. Southwing Heavy Industries, Inc., 222 we described the concept of SSEZ as a Freeport:
The Freeport was designed to ensurefree flow or movement of goods and capital within a portion of the Philippine territory in order
to attract investors to invest their capital in a business climate with the least governmental intervention. The concept ofthis zone
was explained by Senator Guingona in this wise:

Senator Guingona. Mr. President, the special economic zone is successful in many places, particularly Hong Kong, which is a free
port. The difference between a special economic zone and an industrial estate is simply expansive in the sense that the commercial
activities, including the establishment of banks, services, financial institutions, agro-industrial activities, maybe agriculture to a
certain extent.

This delineates the activities that would have the least of government intervention, and the running of the affairs of the special
economic zone would be run principally by the investors themselves, similar toa housing subdivision, where the subdivision owners
elect their representatives to run the affairs of the subdivision, toset the policies, to set the guidelines.

We would like to see Subic area converted into a little Hong Kong, Mr. President, where there is a hub of free port and free entry,
free duties and activities to a maximum spur generation of investment and jobs.

While the investor is reluctant to come in the Philippines, as a rule, because of red tape and perceived delays, we envision this
special economic zone to be an area where there will be minimum government interference.

The initial outlay may not only come from the Government or the Authority as envisioned here, but from them themselves, because
they would be encouraged to invest not only for the land but also for the buildings and factories. As long as they are convinced that
in such an area they can do business and reap reasonable profits, thenmany from other parts, both local and foreign, would invest,
Mr. President.223 (Emphasis in the original)

To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In the process, SBMA was granted broad
and enormous powers as provided for under Section 13(b) of RA 7227:

Sec. 13. The Subic Bay Metropolitan Authority. –

xxxx

(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise
knownas the Subic Authority, shall have the following powers and function: (1) To operate, administer, manage and
develop the ship repair and ship building facility, container port, oil storage and refueling facility and Cubi Air Base within
the Subic Special Economic and Free-port Zone as a free market in accordance with the policies set forth in Section 12 of
this Act;

(2) To accept any local or foreign investment, business or enterprise, subject only to such rules and regulations to
be promulgated by the Subic Authority in conformity with the policies of the Conversion Authority without
prejudice to the nationalization requirements provided for in the Constitution;

(3) To undertake and regulate the establishment, operation and maintenance of utilities, other services and
infrastructure in the Subic Special Economic Zone including shipping and related business, stevedoring and port
terminal services or concessions, incidental thereto and airport operations in coordination with the Civil
Aeronautics Board, and to fix just and reasonable rates, fares charges and other prices therefor;

(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license
permits bulk purchase from the private sector and build-operate transfer scheme or joint-venture the required
utilities and infrastructurein coordination with local government units and appropriate government agencies
concerned and inconformity with existing applicable laws therefor;

(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose, acquire and own properties; to sue
and be sued in order to carry out its duties and functions as provided for in this Act and to exercise the power of
eminent domain for public use and public purpose;
 (6) Within the limitation provided by law, to raise and/or borrow the necessary funds from local and international
financial institutions and to issue bonds, promissory notes and other securities for that purpose and to secure the
same by guarantee, pledge, mortgage deed of trust, or assignment of its properties held by the Subic Authority for
the purpose of financing its projects and programs within the framework and limitation of this Act;

(7) To operate directly or indirectly or license tourism related activities subject to priorities and standards set by
the Subic Authority including games and amusements, except horse racing, dog racing and casino gambling which
shall continue to be licensed by the Philippine Amusement and Gaming Corporation (PAGCOR) upon
recommendation of the Conversion Authority; to maintain and preserve the forested areas as a national park;

(8) To authorize the establishment ofappropriate educational and medical institutions;

(9) To protect, maintain and develop the virgin forests within the baselands, which will be proclaimed as a national
park and subject to a permanent total log ban, and for this purpose, the rules and regulations of the Department of
Environment and Natural Resources and other government agencies directly involved in the above functions shall
be implemented by the Subic Authority;

(10) To adopt and implement measures and standards for environmental pollution control of all areas within its
territory, including but not limited to all bodies of water and to enforce the same. For which purpose the Subic
Authority shall create an Ecology Center; and

(11) To exercise such powers as may be essential, necessary or incidental to the powers granted to it hereunder as
well as to carry out the policies and objectives of this Act. (Emphasis supplied) The Implementing Rules of RA 7227
further provide:

Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in Section 10 of these Rules, the SBMA shall
have the following responsibilities:

(a) The SBMA shall exercise authority and jurisdiction over all economic activity within the SBF 224

xxxx

(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the law and these Rules in the SBF:

xxxx

(8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or privilege allowed under the Act or
these Rules;

xxxx

(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or incidental to carry out the policies and
objectives of the Act, these Rules, as well as the powers and duties of the SBMA thereunder. 225

As can be seen, the SBMA was given broad administrative powers over the SSEZ and these necessarily include the power to approve
or disapprove the subject project, which is within its territorial jurisdiction. But, as previously discussed, the LGC grants the
concerned sangguniansthe power to approve and disapprove this same project. The SBMA asserts that its approval of the project
prevails over the apparent disapproval of the concerned sanggunians. There is, therefore, a real clash between the powers granted
under these two laws.

Which shall prevail?

Section 12 of RA 7227 provides:

Sec. 12. Subic Special Economic Zone. x x x

The abovementioned zone shall be subjected to the following policies:

(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local
Government Code, the Subic Special Economic Zone shall bedeveloped into a self-sustaining, industrial, commercial, financial and
investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign
investments;

xxxx

(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their basic
autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate and function in
accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991. (Emphasis supplied)

This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted by the appellate court, Section 12(i)
expressly recognizes the basic autonomy and identity of the LGUscomprising the SSEZ. However, the clause "[e]xcept as herein
provided" unambiguously provides that the LGUs do not retain their basic autonomy and identitywhen it comes to matters specified
by the law as falling under the powers, functions and prerogatives of the SBMA.

In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is one such power over which the
SBMA’s authority prevails over the LGU’s autonomy. Hence, there isno need for the SBMA to secure the approval of the concerned
sangguniansprior to the implementation of the subject project.

This interpretation is based on the broad grant of powers to the SBMA over all administrative matters relating to the SSEZ under
Section 13 of RA 7227, as afore-discussed. Equally important, under Section 14, other than those involving defense and security, the
SBMA’s decision prevails in case of conflict between the SBMA and the LGUs in all matters concerning the SSEZ, viz.:

Sec. 14. Relationship with the Conversion Authority and the Local Government Units.

(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall exercise
administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zonein conformity with the
oversight function of the Conversion Authority.

(b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the Subic
Special Economic Zone other than defense and security, the decision of the SubicAuthority shall prevail. (Emphasis supplied)

Clearly, the subject project does not involve defense or security, but rather business and investment to further the development of
the SSEZ. Such is in line with the objective of RA 7227 to develop the SSEZ into a self-sustaining industrial, commercial, financial and
investment center. Hence, the decision of the SBMA would prevail over the apparent objections of the concerned sanggunians of the
LGUs.

Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the foregoing interpretation. As earlier noted,
Section 13 b(4) of RA 7227 provides:

Sec. 13. The Subic Bay Metropolitan Authority. –

xxxx

(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay Metropolitan Authority, otherwise knownas the
Subic Authority, shall have the following powers and function: x x x x

(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, franchise, license permits bulk purchase
from the private sector and build-operate transfer scheme or joint-venture the required utilities and infrastructure in coordination
with local government units and appropriate government agencies concerned and in conformity with existing applicable laws
therefor;
In the Senate, during the period of amendments, when the provision which would eventually become the afore-quoted Section 13
b(4) of RA 7227 was under consideration, the following exchanges took place:

Senator Laurel. Mr. President.

The President. Senator Laurel is recognized.

Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the effect that the Authoritywill have the
following functions: "to construct, acquire, own, etcetera," that is all right.

My motion is that we amend this particular line, starting from the word "structures", by deleting the words that follow on line 31,
which states: "in coordination with local government unitsand", and substitute the following in place of those words: "SUBJECT TO
THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN COORDINATION WITH."

So, this paragraph will read, as follows: "to construct, own, lease, operate, and maintain on its own or through contract, franchise,
license permits, bulk purchase from the private sector and build-operate-transfer scheme or joint venture the required utilities and
infrastructure SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT UNITS AND IN
coordination with appropriate government agencies concerned and in conformity with existing applicable laws therefor."

The President. What does the Sponsor say?

Senator Shahani. I believe this would cripple the Authority. I would like to remind our Colleagues that in the Board of Directors, the
representatives of the local government units that agree to join with the Subic Special Economic Zone will be members of the Board
so that they will have a say, Mr. President. But if we say "subject," that is a very strong word. It really means that they will be the
ones to determine the policy.

So, I am afraid that I cannot accept this amendment, Mr. President.

Senator Laurel. May I respond or react, Mr. President.

The President. Yes.

Senator Laurel. The Constitution is there,very categorical inthe promotion and encouragement of local autonomy, and mandating
Congress to enact the necessary Local Government Code with emphasis on local autonomy.

We have now Section 27 of the new Local Government Code which actually provides that for every projectin any local government
territory, the conformity or concurrence of the Sanggunian of every such local government unit shall be secured in the form of
resolution—the consent of the Sanggunian.

The President. Well, both sides have already been heard. There is the Laurel amendment that would make the power of the Subic
Bay Metropolitan Authority to construct, acquire, own, lease, operate and maintain on its own or through contract, franchise,
license, permits, bulk purchases from private sector, buildoperate-and-transfer scheme, or joint venture, the required utilities and
infrastructure, subject to approval by the appropriate Sanggunian of the local government concerned.

This amendment to the amendment has been rejected by the Sponsor. So, we are voting now on this amendment.

As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.)

Those who are against the said amendment, say Nay. (Several Senators: Nay.)

Senator Laurel. Mr. President, may I ask for a nominal voting.

The President. A nominal voting should beupon the request of one-fifth of the Members of the House, but we can accommodate the
Gentleman by asking for a division of the House. Therefore, those in favor of the Laurel amendment, please raise their right hands.
(Few Senators raised their right hands.)
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A nominal voting can be had only upon motion
ofone-fifth of the Members of the Body. Senator Laurel. That is correct, Mr. President. But this issuch an important issue being
presented to us, because this question is related to the other important issue, which is: May an elected public official of a particular
government unit, such as a town or municipality, participate as a member of the Board of Directors of this particular zone.

The President. The ruling of the Chair stands. The division of the House is hereby directed.

As many as are infavor of the Laurel amendment, please raised (sic) their right hands. (Few Senators raised their right hands.)

As many as are against the said amendment, please do likewise. (Several Senators raised their right hands.)

The amendment is lost.226 (Emphasis supplied)

Indubitably, the legislature rejected the attempts to engraft Section 27’s prior approval of the concerned sanggunian requirement
under the LGC into RA 7227. Hence, the clear intent was to do awaywith the approval requirement of the concerned
sangguniansrelative to the power ofthe SBMA to approve or disapprove a project within the SSEZ.

The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:

TITLE VIII.
Autonomous Special Economic Zones

SECTION 117. Establishment of Autonomous Special Economic Zones. — The establishment by law of autonomous special economic
zones in selected areas of the country shall be subject to concurrence by the local government units included therein.

When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this would lead to some diminution of
their local autonomy in order to gain the benefits and privileges of being a part of the SSEZ.

Further, the point of Senator Shahani that the representation of the concerned LGUs in the Board of Directors will compensate for
the diminution of their local autonomy and allow them to be represented in the decision-making of the SBMA is not lost on us. This
is expressly provided for in Section 13(c) of RA 7227, viz:

SECTION 13. The Subic Bay Metropolitan Authority. —

xxxx

(c) Board of Directors. — The powers of the Subic Authority shall be vested in and exercised by a Board of Directors, hereinafter
referred to as the Board, which shall be composed of fifteen (15) members, to wit:

(1) Representatives of the local government units that concur to join the Subic Special Economic Zone;

(2) Two (2) representatives from the National Government;

(3) Five (5) representatives from the private sector coming from the present naval stations, public works center, ship repair
facility, naval supply depot and naval air station; and

(4) The remaining balance to complete the Board shall be composed of representatives from the business and investment
sectors. (Emphasis supplied)

SBMA’s undisputed claim is that, during the board meeting when the subject project was approved, exceptfor one, all the
representatives of the concerned LGUs were present and voted to approve the subject project. 227 Verily, the wisdom of the law
creating the SSEZ; the wisdom of the choice of the concerned LGUs to join the SSEZ; and the wisdom ofthe mechanism of
representation of the concerned LGUs in the decision-making process of the SBMA are matters outside the scope of the power of
judicial review. We can only interpret and apply the law as we find it.
In sum, we find that the implementation of the project is not subject to the prior approval of the concerned sanggunians, under
Section 27 of the LGC, and the SBMA’s decision to approve the project prevails over the apparent objections of the concerned
sangguniansof the LGUs, by virtue ofthe clear provisions of RA 7227. Thus, there was no infirmity when the LDA was entered into
between SBMA and RP Energy despite the lack of approval of the concerned sanggunians. VII.

Whether the validity of the third amendment to the ECC can be resolved by the Court.

The Casiño Group argues that the validity of the third amendment should have been resolved by the appellate court because it is
covered by the broad issues set during the preliminary conference.

RP Energy counters that this issue cannot be resolved because it was expressly excluded during the preliminary conference.

The appellate court sustained the position of RP Energy and ruled that this issue was not included in the preliminary conference so
that it cannot be resolved without violating the right todue process of RP Energy.

We agree with the appellate court.

Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues set during the preliminary conference,
as it appears at that time that the application for the third amendment was still ongoing. The following clarificatory questions during
the aforesaid conference confirm this, viz.:

J. LEAGOGO:

So what are you questioning in your Petition?

ATTY. RIDON:

We are questioning the validity of the amendment, Your Honor.

J. LEAGOGO:

Which amendment?

ATTY. RIDON:

From 2 x 150 to 1 x 300, Your Honor.

J. LEAGOGO:

Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you still have remedies there, you can make
your noise there, you can question it to your heart[’]s content because it is still pending

xxxx

J. LEAGOGO:

Atty. Ridon, I go back to my question. We’re not yet talking of the legal points here. I’m just talking of what are you questioning. You
are questioning the 1 x 300?

ATTY. RIDON:

Yes, Your Honor.

J. LEAGOGO:
Because it was 2 x 150 and then 1 x 300?

ATTY. RIDON:

Yes, Your Honor.

J. LEAGOGO:

Up to that point?

ATTY. RIDON:

Yes, Your Honor.

J. LEAGOGO:

Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear enough for all of us.

ATTY. RIDON:

Yes, Your Honor.228

Given the invocation of the right to due process by RP Energy, we must sustain the appellate court’s finding that the issue as to the
validity of the third amendment cannot be adjudicated in this case.

Refutation of the Partial Dissent.

Justice Leonen partially dissents from the foregoing disposition on the following grounds:

(a) Environmental cases, such asa petition for a writ of kalikasan, should not, in general,be litigated viaa representative,
citizen or class suit because of the danger of misrepresenting the interests— and thus, barring future action due to res
judicata— of those not actually present in the prosecution of the case, either because they do not yet exist, like the unborn
generations, or because the parties bringing suit do not accurately represent the interests ofthe group they represent or the
class to which they belong. As an exception, such representative, citizen or class suit may be allowed subject to certain
conditions; and

(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void for failure to submit a new EIS in
support of the applications for these amendments to the subject ECC, and a petition for writ of kalikasanis not the proper
remedy to raise a defect inthe ECC.

We disagree.

A.

Justice Leonen’s proposition that environmental cases should not, in general, be litigated via a representative, citizen or class suit is
both novel and ground-breaking. However, it isinappropriate to resolve such an important issue in this case, in view of the requisites
for the exercise of our power of judicial review, because the matter was not raised by the parties so that the issue was not squarely
tackled and fully ventilated. The proposition will entail, as Justice Leonen explains, an abandonment or, at least, a modification of
our ruling in the landmark case of Oposa v. Factoran. 229 It will also require an amendment or a modification of Section 5 (on citizen
suits), Rule 2 ofthe Rules of Procedure for Environmental Cases. Hence, it is more appropriate to await a case where such issues and
arguments are properly raisedby the parties for the consideration of the Court.

B.

Justice Leonen reasons that the amendments to the subject ECC are void because the applications therefor were unsupported by
anEIS, as required by PD 1151 and PD 1586. The claim is made that an EIS is required by law, even if the amendment to the ECC is
minor, because an EIS is necessary to determine the environmental impact of the proposed modifications to the original project
design. The DENR rules, therefore, which permit the modification of the original project design without the requisite EIS, are void for
violating PD 1151 and PD 1586.

We disagree.

Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action, project or undertaking that significantly
affects the quality of the environment, viz:

SECTION 4. Environmental Impact Statements. — Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including government-owned or -controlled corporations, as well as private
corporations, firms and entities shall prepare, file and include in every action, projector undertaking which significantly affects the
quality of the environmenta detailed statement on —

(a) the environmental impact of the proposed action, project or undertaking;

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;

(c) alternative to the proposed action;

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and
enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use
and commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on,
the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30)
days from receipt of the same. (Emphasis supplied)

As earlier stated, the EIS was subsequently developed and strengthened through PD 1586 which established the Philippine
Environmental Impact Statement System. Sections 4 and 5 of PD 1586 provide:

SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects.1avvphi1 The President of the Philippines may,
on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain
projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For the proper management of said critical project or area, the
President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities
including the re-alignment of government personnel, and their specific functions and responsibilities.

For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said
critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a program of environmental
enhancement or protective measures against calamituous factors such as earthquake, floods, water erosion and others, and (d)
perform such other functions as may be directed by the President from time to time.

SECTION 5. Environmentally Non-Critical Projects. — All other projects, undertakings and areas not declared by the President as
environmentally critical shall be considered as non-critical and shall not be required to submit an environmental impact statement.
The National Environmental Protection Council, thru the Ministry of Human Settlements may however require non-critical projects
and undertakings to provide additional environmental safeguards as it may deem necessary. (Emphasis supplied)

These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual.

As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was subsequently issued which, among others, classified
fossil-fueled power plants as environmentally critical projects.
In conformity with the above-quoted laws and their implementing issuances, the subject project, a coal power plant, was classified
by the DENR as an environmentally critical project, new and single. Hence, RP Energy was required to submit an EIS in support of its
application for an ECC. RP Energy thereafter complied with the EIS requirement and the DENR, after review, evaluation and
compliance with the other steps provided in its rules, issued an ECC in favor of RP Energy. As can be seen, the EIS requirement was
duly complied with.

Anent Justice Leonen’s argument thatthe subsequent amendments to the ECC were void for failure to prepare and submit a new EIS
relative to these amendments, it is important to note thatPD 1586 does not state the procedure to be followed when there is an
application for an amendment to a previously issued ECC. There is nothing in PD 1586 which expressly requires an EIS for an
amendment to an ECC.

In footnote 174 of the ponencia, it is stated:

Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged by the Casiño
Group on the ground that it is ultra vires before the appellate court. It argued that the laws governing the ECC do not expressly
permit the amendment of an ECC. However, the appellate court correctly ruled that the validity of the rules cannot be collaterally
attacked. Besides,the power of the DENR to issue rules on amendments of an ECC is sanctioned under the doctrine of necessary
implication. Considering that the greater power todeny or grant an ECC is vested by law in the President or his authorized
representative, the DENR, there is no obstacle to the exercise of the lesser or implied power to amend the ECC for justifiable
reasons. This issue was no longer raised before this Court and, thus, we no longertackle the same here.

Because PD 1586 did not expressly provide the procedure to be followed in case of an application for an amendment toa previously
issued ECC, the DENR exercised its discretion, pursuant to its delegated authority to implement this law, in issuing DAO 2003-30 and
the Revised Manual.

Justice Leonen’s argument effectively challenges the validity of the provisions in DAO 2003-30 and the Revised Manual relative to
amendments to an ECC for being contrary to PD 1151 and 1586.

We disagree.

First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment to an ECC.

Second, as earlier noted, the proposition would constitute a collateral attack on the validity of DAO 2003-30 and the Revised
Manual, which is not allowed under the premises. The Casiño Group itself has abandoned this claim before this Court so that the
issue is not properly before this Court for its resolution.

Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised Manual can be allowed in this case, the rules
on amendments appear to be reasonable, absent a showing of grave abuse of discretion or patent illegality.

Essentially, the rules take into consideration the nature of the amendment in determining the proper Environmental Impact
Assessment (EIA) document type that the project proponent will submit in support of its application for an amendment to its
previously issued ECC. A minor amendment will require a less detailed EIA document type, like a Project Description Report (PDR),
while a major amendment will require a more detailed EIA document type, like an Environmental Performance Report and
Management Plan (EPRMP) or even an EIS.230

The rules appear to be based on the premise that it would be unduly burden some or impractical to require a project proponent to
submit a detailed EIA document type, like an EIS, for amendments that, upon preliminary evaluation by the DENR, will not cause
significant environmental impact. In particular, as applied to the subject project, the DENR effectively determined that it is
impractical to requireRP Energy to, in a manner of speaking, start from scratch by submitting a new EIS in support of its application
for the first amendment to its previously issued ECC, considering that the existing EIS may be supplemented by an EPRMP to
adequately evaluate the environmental impact of the proposed modifications under the first amendment. The same reasoning may
be applied to the PDR relative to the second amendment. As previously discussed, the Casiño Group failed to provethat the EPRMP
and PDR were inadequate to assess the environmental impact of the planned modifications under the first and second amendments,
respectively. On the contrary, the EPRMP and PDR appeared to contain the details of the planned modifications and the
corresponding adjustments to bemade in the environmental management plan or mitigating measures inorder to address the
potential impacts of these planned modifications. Hence, absent sufficient proof, there is no basis to conclude that the procedure
adopted by the DENR was done with grave abuse of discretion.
Justice Leonen’s proposition would effectively impose a stringent requirement of an EIS for each and every proposed amendment to
an ECC, no matter how minor the amendment may be. While this requirement would seem ideal, in order to ensure that the
environmental impact of the proposed amendment is fully taken into consideration, the pertinent laws do not, however, expressly
require that such a procedure be followed.As already discussed, the DENR appear to have reasonably issued DAO 2003-30 and the
Revised Manualrelative to the amendment process of an ECC, by balancing practicality vis-à-vis the need for sufficient information in
determining the environmental impact of the proposed amendment to an ECC. In fine, the Court cannot invalidate the rules which
appear to be reasonable, absent a showing of grave abuse of discretion or patent illegality.

We next tackle Justice Leonen’s argument that a petition for certiorari,and not a writ of kalikasan,is the proper remedy to question a
defect in an ECC.

In general, the proper procedure to question a defectin an ECC is to follow the appeal process provided in DAO 2003-30 and the
Revised Manual. After complying with the proper administrative appeal process, recourse may be made to the courts in accordance
with the doctrine of exhaustion of administrative remedies. However, as earlier discussed, in exceptional cases, a writ of kalikasan
may be availed of to challenge defects in the ECC providedthat (1) the defects are causally linked or reasonably connected to an
environmental damage of the nature and magnitudecontemplated under the Rules on Writ of Kalikasan, and (2) the case does not
violate, or falls under an exception to, the doctrine of exhaustion of administrative remedies and/or primary jurisdiction.

As previously discussed, in the case at bar, only the allegation with respect to the lack of an EIA relative to the first and second
amendments to the subject ECC may be reasonably connected to such an environmental damage. Further, given the extreme
urgency of resolving the issue due to the looming power crisis, this case may be considered as falling under an exception to the
doctrine of exhaustion of administrative remedies. Thus, the aforesaid issue may be conceivably resolved in a writ of kalikasan case.

More importantly, we have expressly ruled that this case is an exceptional case due to the looming power crisis, so that the rules of
procedure may be suspended in order to address issues which, ordinarily, the Court would not consider proper in a writ of kalikasan
case. Hence, all issues, including those not proper in a writ of kalikasan case, were resolved here in order to forestall another round
of protracted litigation relative to the implementation of the subject project.

Conclusion

We now summarize our findings:

1. The appellate court correctly ruled that the Casiño Group failed to substantiate its claims thatthe construction and
operation of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan.
On the other hand, RP Energy presented evidenceto establish that the subject project will not cause grave environmental
damage, through its Environmental Management Plan, which will ensure thatthe project will operate within the limits of
existing environmental laws and standards;

2. The appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the ECC’s
Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the
signature is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP
Energy were not properly apprised of the issue of lack of signature in order for them to present controverting evidence and
arguments on this point, as the issue only arose during the course of the proceedings upon clarificatory questions from the
appellate court. Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it
learned that the ECC had been invalidatedon the ground of lack of signature in the January 30, 2013 Decision of the
appellate court. The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability
portion, was issued by the DENR-EMB, and remains uncontroverted. It showed that the Statement of Accountability was
signed by Mr. Aboitiz on December 24, 2008. Because the signing was done after the official release of the ECC on
December 22, 2008, wenote that the DENR did not strictly follow its rules, which require that the signing of the Statement
of Accountability should be done before the official release of the ECC. However, considering that the issue was not
adequately argued norwas evidence presented before the appellate court on the circumstances at the time of signing, there
is insufficient basis to conclude that the procedure adoptedby the DENR was tainted with bad faith or inexcusable
negligence. We remind the DENR, however, to be more circumspect in following its rules. Thus, we rule that the signature
requirement was substantially complied with pro hac vice.

3. The appellate court erred when it ruled that the first and second amendments to the ECC were invalid for failure to
comply with a new EIA and for violating DAO 2003-30 and the Revised Manual. It failed to properly consider the applicable
 provisions in DAO 2003-30 and the Revised Manual for amendment to ECCs. Our own examination of the provisions on
amendments to ECCs in DAO 2003-30 and the Revised Manual, as wellas the EPRMP and PDR themselves, shows that the
DENR reasonably exercised its discretion in requiring an EPRMP and a PDR for the first and second amendments,
respectively. Through these documents, which the DENR reviewed, a new EIA was conducted relative to the proposed
project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent illegality, relative to both the
procedure and substance of the amendment process, we uphold the validity of these amendments;

4. The appellate court erred when it invalidated the ECC for failure to comply with Section 59 of the IPRA Law.1âwphi1 The
ECC is not the license or permit contemplated under Section 59 of the IPRA Law and its implementing rules. Hence, there is
no necessity to secure the CNO under Section 59 before an ECC may be issued, and the issuance of the subject ECC without
first securing the aforesaid certification does not render it invalid;

5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy for failure to comply withSection 59
of the IPRA Law. While we find that a CNO should have been secured prior to the consummation of the LDA between SBMA
and RP Energy, considering that this is the first time we lay down the rule of action appropriate to the application of Section
59, we refrain from invalidating the LDA for reasons of equity;

6. The appellate court erred when it ruled that compliance with Section 27, in relation to Section 26, of the LGC (i.e.,
approval of the concerned sanggunian requirement) is necessary prior to issuance of the subjectECC. The issuance of an ECC
does not, by itself, result inthe implementation of the project. Hence, there is no necessity to secure prior compliance with
the approval of the concerned sanggunian requirement, and the issuance of the subject ECC without first complying with
the aforesaid requirement does not render it invalid. The appellate court also erred when it ruled that compliance with the
aforesaid requirement is necessary prior to the consummation of the LDA. By virtue of the clear provisions of RA 7227, the
project is not subject to the aforesaid requirement and the SBMA’s decision to approve the project prevails over the
apparent objections of the concerned sanggunians. Thus, the LDA entered into between SBMA and RP Energy suffers from
no infirmity despite the lack of approval of the concerned sanggunians; and

7. The appellate court correctly ruled thatthe issue as to the validity of the third amendment to the ECC cannot be resolved
in this case because it was not one of the issues set during the preliminary conference, and would, thus, violate RP Energy’s
right to due process. WHEREFORE, the Court resolves to:

1. DENY the Petition in G.R. No. 207282; and

2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:

2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the Court of Appeals in CA-G.R. SP No.
00015 are reversed and set aside;

2.2. The Petition for Writ of Kalikasan, docketed as CA-G.R. SP No. 00015, is denied for insufficiency of
evidence;

2.3. The validity of the December 22, 2008 Environmental Compliance Certificate, as well as the July 8,
2010 first amendment and the May 26, 2011 second amendment thereto, issued by the Department of
Environment and Natural Resources in favor of Redondo Peninsula Energy, Inc., are upheld; and

2.4. The validity of the June 8, 2010 Lease and Development Agreement between Subic Bay Metropolitan
Authority and Redondo Peninsula Energy, Inc. is upheld.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 160932               January 14, 2013

SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS CHAIRMAN, ROBERTO P. CERICOS, Petitioner,

vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR, BOHOL PROVINCIAL CHIEF, REGIONAL DIRECTOR, AND
NATIONAL DIRECTOR, RESPECTIVELY, ENVIRONMENTAL MANAGEMENT BUREAU, DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, AND THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, ALL SUED IN
BOTH THEIR OFFICIAL AND PRIVATE CAPACITIES, Respondents.

DECISION

BERSAMIN, J.:

The peremptory writ of mandamus is an extraordinary remedy that is issued only in extreme necessity, and the ordinary course of
procedure is powerless to afford an adequate and speedy relief to one who has a clear legal right to the performance of the act to be
compelled.

Antecedents

The petitioner was a proponent of a water-resource development and utilization project in Barangay Jimilia-an in the Municipality of
Loboc, Bohol that would involve the tapping and purifying of water from the Loboc River, and the distribution of the purified water
to the residents of Loboc and six other municipalities. The petitioner applied for a Certificate of Non-Coverage (CNC) with the
Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Region 7, seeking to
be exempt from the requirement of the Environmental Compliance Certificate (ECC) under Section 4 of Presidential Decree No. 1586
on the following justifications, to wit:

1) The whole project simply involves tapping of water from the Loboc River, filtering and purifying it, and distributing the
same to the consumers in the covered towns;

2) From the source to the filtration plant, then to the purifier stations, then finally to the consumers’ households, water
flows through steel pipes;

3) The filtration and purifying process employs the latest technology—"electrocatalytic"—internationally accepted for
safety and environment friendliness;

4) No waste is generated, as the electrocatalytic process dissolves all impurities in the water;

5) The project involves no destruction [n]or harm to the environment. On the other hand, it is environment friendly. 1

Upon evaluating the nature and magnitude of the environmental impact of the project, respondent Nestor M. Canda, then Chief of
EMB in Bohol, rendered his findings in a letter dated December 4, 2001, as follows:

1) The project is located within a critical area; hence, Initial Environmental Examination is required.

2) The project is socially and politically sensitive therefore proof of social acceptability should be established. Proper
indorsement from the Protected Area Management Bureau or PAMB should be secured. 2 (Emphasis supplied)

On January 11, 2002, the petitioner appealed Canda’s findings to respondent EMB Region 7 Director Bienvenido L. Lipayon (RD
Lipayon), claiming that it should also be issued a CNC because the project was no different from the Loboc-Loay waterworks project
of the Department of Public Works and Highways (DPWH) that had recently been issued a CNC. 3
On April 3, 2002, RD Lipayon notified the petitioner that its documents substantially complied with the procedural aspects of the
EMB’s review, and that the application was assigned EMB-DENR-7 Control No. CNC-02-080 for easy reference in case of follow-up
and submission of additional requirements. 4

Later on, RD Lipayon informed the petitioner that an Initial Environmental Examination document was required for the project due
to its significant impact in the area.5

On August 26, 2002, RD Lipayon required the petitioner to submit the following documents to enable the EMB to determine
whether the project was within an environmentally critical area or not, to wit:

1. Certification from DENR, Provincial Environment and Natural Resources Office (PENRO) that it is not within areas declared
by law as national parks, watershed reserves, wildlife preservation area, sanctuaries and not within the purview of Republic
Act No. 7586 or the National Integrated Protected Areas System (NIPAS) Act, and other issuances including international
commitments and declarations;

2. Certification from the DENR Regional Office/ PENRO [that] the areas within the project do not constitute the habitat for
any endangered or threatened species or indigenous wildlife (Flora and Fauna).

3. Certification from the following:

3.1. Philippine Atmospheric Geophysical and Astronomical Services Administration (PAGASA) that the area is not
frequently visited or hard-hit by typhoons. This shall refer to all areas where typhoon signal no. 3 not hoisted for at
least twice a year during the last five (5) years prior to the year of reckoning. Years to be considered shall be from
January 1995 to December 2001.

3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that the area was not subjected to an
earthquake of at least intensity VII in the Rossi-Forel scale or its equivalent and hit by tsunamis during the period of
1638 until the year 2001.

3.3. PHIVOLCS that the area was not subjected to earthquakes of at least intensity VII in the Rossi-Forel scale or its
equivalent during the period of 1949 until the year 2001.

3.4. PAGASA that the area is not storm surge-prone.

3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is not located along fault lines or within fault
zones and not located in critical slope.

3.6. City Mayor and/or City Engineers Office that the area is not flood prone.

3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of Soils and Water Management (BSWM)
that the area is not classified as Prime Agricultural Land.

4. Certification from the Provincial Tourism Office or its equivalent office that areas in your project are not set-aside as
aesthetic potential tourist spot.

5. Certification from the National Water Resources Board (NWRB) that areas within your project are not recharged areas of
aquifer.

6. Certification from DENR regional Office and/or Environmental Management Bureau 7 (EMB 7) that Loboc River is not
characterized by one or any combination of the following conditions:

a. Tapped for domestic purposes;

b. With controlled and/or protected areas declared by appropriate authorities; and

c. Which support wildlife and fishery activities.

A Certificate of Non-Coverage will duly be issued to your foundation once all the above mentioned required certifications are
complied with.

Projects that are covered by P.D. 1586 or the Environmental Impact System (EIS) Law should not start unless the Project Proponent
should secure an Environmental Compliance Certificate (ECC), otherwise penalties shall be imposed. 6 (Emphases supplied)

On January 28, 2003, the petitioner submitted eight certifications, 7 including the certification issued by the Philippine Institute of
Volcanology and Seismology (PHIVOLCS), as follows:

That the project area, Loboc, Bohol was subjected to an earthquake of Intensity VII in the adapted Rossi-Forel scale of I-IX last
February 8, 1990. The magnitude of the earthquake is 6.8 and the highest intensity reported was VIII, based on the Rossi-Forel
Intensity Scale. During the said earthquake, the PMI Academy Building collapsed while minor cracks were sustained by the municipal
hall, public school, town church and some other houses in the town. There were reports that immediately after the earthquake, the
force of the incoming waves from the sea caused Alijuan River in the town of Duero to flow inland. The report also states that the
waves affected 10-50 meters of the coastal beach of the towns of Jagna, Duero, Guindulman, Garcia Hernandez and
Valencia.8 (Emphases supplied)

The petitioner failed to secure a certification from the Regional Office of the Mines and Geosciences Bureau (RO-MGB) to the effect
that the project area was not located along a fault line/fault zone or a critical slope because RO-MGB did not have the data and
expertise to render such finding, and thus had to forward the petitioner’s request to the MGB Central Office. 9

Upon the MGB’s advice, the petitioner sought and obtained the required certification from PHIVOLCS, but the certification did not
state whether the project area was within a critical slope. Instead, the certification stated that the project site was approximately 18
kilometers west of the East Bohol Fault. 10

Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter dated February 4, 2003 declared that the project was within
an environmentally critical area, and that the petitioner was not entitled to the CNC, viz:

After thorough review of your submitted certifications, it was found out that the area was subjected to an earthquake of Intensity VII
in the adapted Rossi-Forel scale wherein the magnitude of the earthquake is 6.8 with the highest intensity reported of VIII and you
fail to support certification that the project area is not within critical slope. And based on the Water Usage and Classification per
Department Order (DAO) 34 Series of 1990, subject river system was officially classified as Class B intended for swimming and
bathing purposes. Moreover, one component of your project involves opening of roadway connected to the barangay road.

Therefore, we reiterate our previous stand that your project is covered by the EIS System pursuant to P.D. 1586, the Environmental
Impact Statement Law.11

On March 27, 2003, the petitioner filed a petition for mandamus and damages in the Regional Trial Court (RTC) in Loay,
Bohol,12 alleging that it was now entitled to a CNC as a matter of right after having complied with the certification requirements; and
that the EMB had earlier issued a CNC to the DPWH for a similar waterworks project in the same area.

In the decision dated November 18, 2003,13 the RTC dismissed the petition for mandamus upon the following considerations,
namely: (1) PHIVOLCS certified that the project site had been subjected to an Intensity VII earthquake in 1990; (2) the CNC issued by
the EMB to a similar waterworks project of the DPWH in the same area was only for the construction of a unit spring box intake and
pump house, and the DENR issued a cease and desist order relative to the DPWH’s additional project to put up a water filtration
plant therein; (3) the determination of whether an area was environmentally critical was a task that pertained to the EMB; (4) the
assignment of a control number by the EMB to the petitioner’s application did not mean that the application was as good as
approved; (5) the RTC would not interfere with the primary prerogative of the EMB to review the merits of the petitioner’s
application for the CNC; and (6) there was already a pending appeal lodged with the DENR Secretary.

Hence, this appeal brought directly to the Court via petition for review on certiorari.

Issues

The petitioner submits the following issues:

 A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH THE REQUIREMENTS MANDATED BY RESPONDENTS
FOR THE ISSUANCE OF THE CERTIFICATE OF NON-COVERAGE (CNC) APPLIED FOR BY PETITIONER, IT IS NOW THE RIPENED
DUTY OF RESPONDENTS, THROUGH RESPONDENT EMB REGIONAL DIRECTOR, TO ISSUE SAID DOCUMENT IN FAVOR OF
PETITIONER;

B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO
RESPONDENT DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP TO THE PRESENT;

C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER DAMAGES FROM RESPONDENTS IN THEIR PERSONAL
CAPACITY.14

The petitioner insists that RD Lipayon already exercised his discretion by finding that the application substantially complied with the
procedural aspects for review and by assigning Control No. CNC-02-080 to its application; that after the petitioner complied with the
requirements enumerated in the August 26, 2002 letter of RD Lipayon, the EMB became duty-bound to issue the CNC to the
petitioner; that the EMB issued a CNC to a similar project of the DPWH in the same area; that it filed an appeal with the DENR
Secretary, but the appeal remained unresolved; and that it brought the petition for mandamus precisely as a speedier recourse.

In their comment, RD Lipayon and Canda aver that the act complained of against them involved an exercise of discretion that could
not be compelled by mandamus; that the petitioner’s proposed project was located within an environmentally critical area, and the
activities to be done were so significant that they would create massive earth movement and environmental degradation; that the
petitioner violated the rule against forum shopping; and that the petitioner had no cause of action against them for failure to
exhaust administrative remedies.

On his part, the DENR Secretary, through the Solicitor General, contends that the petition raises questions of fact that are not proper
in a petition for review; that the petitioner should have appealed to the CA under Rule 41 of the Rules of Court; that the grant or
denial of a CNC application is discretionary and cannot be compelled by mandamus; and that the petitioner failed to exhaust
administrative remedies.

Accordingly, the Court is called upon to resolve, firstly, whether the appeal directly to this Court from the RTC was proper, and,
secondly, whether the petition for mandamus was the correct recourse.

Ruling

The petition for review is denied for its lack of merit.

1.

Petitioner’s appeal is improper under Rule 45, Rules of Court

This appeal by certiorari is being taken under Rule 45, Rules of Court, whose Section 1 expressly requires that the petition shall raise
only questions of law which must be distinctly set forth. Yet, the petitioner hereby raises a question of fact whose resolution is
decisive in this appeal. That issue of fact concerns whether or not the petitioner established that its project was not located in an
environmentally critical area. For this reason, the Court is constrained to deny due course to the petition for review.

It is a settled rule, indeed, that in the exercise of our power of review, the Court is not a trier of facts and does not normally
undertake the re-examination of the evidence presented by the contending parties during the trial of the case. The Court relies on
the findings of fact of the Court of Appeals or of the trial court, and accepts such findings as conclusive and binding unless any of the
following exceptions obtains, namely: (a) when the findings are grounded entirely on speculation, surmises or conjectures; (b) when
the inference made is manifestly mistaken, absurd or impossible; (c) when there is grave abuse of discretion; (d) when the judgment
is based on a misapprehension of facts; (e) when the findings of facts are conflicting; (f) when in making its findings the Court of
Appeals or the trial court went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and
the appellee; (g) when the findings are contrary to the trial court; (h) when the findings are conclusions without citation of specific
evidence on which they are based; (i) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are
not disputed by the respondent; (j) when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; and (k) when the Court of Appeals or the trial court manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different conclusion. 15 However, none of the aforementioned
exceptions applies herein.
2.

Mandamus was an improper remedy for petitioner

We dismiss the present recourse because the petitioner failed to exhaust the available administrative remedies, and because it
failed to show that it was legally entitled to demand the performance of the act by the respondents.

It is axiomatic, to begin with, that a party who seeks the intervention of a court of law upon an administrative concern should first
avail himself of all the remedies afforded by administrative processes. The issues that an administrative agency is authorized to
decide should not be summarily taken away from it and submitted to a court of law without first giving the agency the opportunity
to dispose of the issues upon due deliberation.16 The court of law must allow the administrative agency to carry out its functions and
discharge its responsibilities within the specialized areas of its competence. 17 This rests on the theory that the administrative
authority is in a better position to resolve questions addressed to its particular expertise, and that errors committed by subordinates
in their resolution may be rectified by their superiors if given a chance to do so. 18

The records show that the petitioner failed to exhaust the available administrative remedies. At the time RD Lipayon denied the
petitioner’s application for the CNC, Administrative Order No. 42 dated November 2, 2002 19 had just vested the authority to grant or
deny applications for the ECC in the Director and Regional Directors of the EMB. Notwithstanding the lack of a specific implementing
guideline to what office the ruling of the EMB Regional Director was to be appealed, the petitioner could have been easily guided in
that regard by the Administrative Code of 1987, which provides that the Director of a line bureau, such as the EMB, 20 shall have
supervision and control over all division and other units, including regional offices, under the bureau. 21 Verily, supervision and
control include the power to "review, approve, reverse or modify acts and decisions of subordinate officials or units." 22 Accordingly,
the petitioner should have appealed the EMB Regional Director’s decision to the EMB Director, who exercised supervision and
control over the former.

It is relevant to mention that the DENR later promulgated Administrative Order No. 2003-30 23 in order to define where appeals
should be taken, providing as follows:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC/CNC applications may, within 15 days from receipt of such decision, file an
appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and
aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.

The proponent or any stakeholder may file an appeal to the following:

1âwphi1
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

Moreover, the petitioner states in its pleadings that it had a pending appeal with the DENR Secretary.1âwphi1 However, the records
reveal that the subject of the appeal of the petitioner was an undated resolution of the DENR Regional Director, Region VII, denying
its application for the CNC,24 not the decision of RD Lipayon. Nonetheless, even assuming that the pending appeal with the DENR
Secretary had related to RD Lipayon’s decision, the petitioner should still have waited for the DENR Secretary to resolve the appeal
in line with the principle of exhaustion of administrative remedies. Its failure to do so rendered its resort to mandamus in the RTC
premature. The omission is fatal, because mandamus is a remedy only when there is no appeal, nor any plain, speedy and adequate
remedy in the ordinary course of law.25

Another reason for denying due course to this review is that the petitioner did not establish that the grant of its application for the
CNC was a purely ministerial in nature on the part of RD Lipayon. Hence, mandamus was not a proper remedy.

The CNC is a certification issued by the EMB certifying that a project is not covered by the Environmental Impact Statement System
(EIS System) and that the project proponent is not required to secure an ECC. 26 The EIS System was established by Presidential
Decree (P.D.) No. 1586 pursuant to Section 4 of P.D. No. 1151 (Philippine Environmental Policy) that required all entities to submit
an EIS for projects that would have a significant effect on the environment, thus:

Section 4. Environmental Impact Statements. – Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including government-owned or controlled corporations, as well as private
corporations, firms and entities shall prepare, file and include in every action, project or undertaking which significantly affects the
quality of the environment a detailed statement on–

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and
enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use
and commitment are warranted.

xxxx

P.D. No. 1586 exempted from the requirement of an EIS the projects and areas not declared by the President of the Philippines as
environmentally critical,27 thus:

Section 5. Environmentally Non-Critical Projects. - All other projects, undertakings and areas not declared by the Presidents as
environmentally critical shall be considered as non-critical and shall not be required to submit an environmental impact statement.
The National Environmental Protection Council, thru the Ministry of Human Settlements may however require non-critical projects
and undertakings to provide additional environmental safeguards as it may deem necessary.

On December 14, 1981, the President issued Proclamation No. 2146 declaring areas and types of projects as environmentally critical
and within the scope of the EIS System, as follows:

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas

d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

 b. Forestry projects

1. Logging

2. Major wood processing projects

3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)

c. Major reclamation projects

d. Major roads and bridges.

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife
(flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic
activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate authorities

 c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds and storm floods;

e. on which people are dependent for their livelihood.

12. Coral reef, characterized by one or any combination of the following conditions:

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

Projects not included in the foregoing enumeration were considered non-critical to the environment and were entitled to the CNC.

The foregoing considerations indicate that the grant or denial of an application for ECC/CNC is not an act that is purely ministerial in
nature, but one that involves the exercise of judgment and discretion by the EMB Director or Regional Director, who must determine
whether the project or project area is classified as critical to the environment based on the documents to be submitted by the
applicant.

The petitioner maintains that RD Lipayon already exercised his discretion in its case when he made his finding that the application
substantially complied with the procedural requirements for review. As such, he was then obliged to issue the CNC once the
petitioner had submitted the required certifications.

The petitioner errs on two grounds.

Firstly, RD Lipayon had not yet fully exercised his discretion with regard to the CNC application when he made his finding. It is clear
that his finding referred to the "procedural requirements for review" only. He had still to decide on the substantive aspect of the
application, that is, whether the project and the project area were considered critical to the environment. In fact, this was the
reason why RD Lipayon required the petitioner to submit certifications from the various government agencies concerned. Surely, the
required certifications were not mere formalities, because they would serve as the bases for his decision on whether to grant or
deny the application.

Secondly, there is no sufficient showing that the petitioner satisfactorily complied with the requirement to submit the needed
certifications. For one, it submitted no certification to the effect that the project site was not within a critical slope. Also, the
PHIVOLCS’s certification showed that the project site had experienced an Intensity VII earthquake in 1990, a fact that sufficed to
place the site in the category of "areas frequently visited and/or hard-hit by natural calamities." Clearly, the petitioner failed to
establish that it had the legal right to be issued the CNC applied for, warranting the denial of its application.

It is not amiss for us to observe, therefore, that the petitioner grossly misunderstood the nature of the remedy of mandamus. To
avoid similar misunderstanding of the remedy hereafter, a short exposition on the nature and office of the remedy is now
appropriate.

The writ of mandamus is of very ancient and obscure origin. It is believed that the writ was originally part of the class of writs or
mandates issued by the English sovereign to direct his subjects to perform a particular act or duty. 28 The earliest writs were in the
form of letters missive, and were mere personal commands. The command was a law in itself, from which there was no appeal. The
writ of mandamus was not only declaratory of a duty under an existing law, but was a law in itself that imposed the duty, the
performance of which it commanded.29 The King was considered as the fountain and source of justice, and when the law did not
afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary
powers of the courts.30

A judicial writ of mandamus, issued in the King’s name out of the court of King’s Bench that had a general supervisory power over all
inferior jurisdictions and officers, gradually supplanted the old personal command of the sovereign. 31 The court of King’s Bench,
acting as the general guardian of public rights and in the exercise of its authority to grant the writ, rendered the writ of mandamus
the suppletory means of substantial justice in every case where there was no other specific legal remedy for a legal right, and
ensured that all official duties were fulfilled whenever the subject-matter was properly within its control. 32 Early on, the writ of
mandamus was particularly used to compel public authorities to return the petitioners to public offices from which they had been
unlawfully removed.33

Mandamus was, therefore, originally a purely prerogative writ emanating from the King himself, superintending the police and
preserving the peace within the realm. 34 It was allowed only in cases affecting the sovereign, or the interest of the public at
large.35 The writ of mandamus grew out of the necessity to compel the inferior courts to exercise judicial and ministerial powers
invested in them by restraining their excesses, preventing their negligence and restraining their denial of justice. 36

Over time, the writ of mandamus has been stripped of its highly prerogative features and has been assimilated to the nature of an
ordinary remedy. Nonetheless, the writ has remained to be an extraordinary remedy in the sense that it is only issued in
extraordinary cases and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to
a party aggrieved, and where without its aid there would be a failure of justice. 37

The writ of mandamus has also retained an important feature that sets it apart from the other remedial writs, i.e., that it is used
merely to compel action and to coerce the performance of a pre-existing duty. 38 In fact, a doctrine well-embedded in our
jurisprudence is that mandamus will issue only when the petitioner has a clear legal right to the performance of the act sought to be
compelled and the respondent has an imperative duty to perform the same. 39 The petitioner bears the burden to show that there is
such a clear legal right to the performance of the act, and a corresponding compelling duty on the part of the respondent to perform
the act.40

A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the
performance of duties that are purely ministerial in nature, not those that are discretionary. 41 A purely ministerial act or duty is one
that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done. The duty is
ministerial only when its discharge requires neither the exercise of official discretion or judgment. 42

The petitioner's disregard of the foregoing fundamental requisites for mandamus rendered its petition in the RTC untenable and
devoid of merit.

WHEREFORE, the Court DENIES the petition for review on certiorari; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED.
 FIRST DIVISION

[G.R. No. 148622. September 12, 2002.]

REPUBLIC OF THE PHILIPPINES, represented by HON. HEHERSON T. ALVAREZ, in his capacity as Secretary of the DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES (DENR), CLARENCE L. BAGUILAT, in his capacity as the Regional Executive Director of
DENR-Region XI and ENGR. BIENVENIDO L. LIPAYON, in his capacity as the Regional Director of the DENR-ENVIRONMENTAL
MANAGEMENT BUREAU (DENR-EMB), Region XI, Petitioners, v. THE CITY OF DAVAO, represented by BENJAMIN C. DE GUZMAN,
City Mayor, Respondent.

DECISION

YNARES-SANTIAGO, J.:

Before us is a petition for review 1 on certiorari assailing the decision 2 dated May 28, 2001 of the Regional Trial Court of Davao City,
Branch 33, which granted the writ of mandamus and injunction in favor of respondent, the City of Davao, and against petitioner, the
Republic, represented by the Department of Environment and Natural Resources (DENR). The trial court also directed petitioner to
issue a Certificate of Non-Coverage in favor of Respondent.chanrob1es virtua1 1aw 1ibrary

The antecedent facts of the case are as follows:chanrob1es virtual 1aw library

On August 11, 2000, respondent filed an application for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City
Artica Sports Dome, with the Environmental Management Bureau (EMB), Region XI. Attached to the application were the required
documents for its issuance, namely, a) detailed location map of the project site; b) brief project description; and c) a certification
from the City Planning and Development Office that the project is not located in an environmentally critical area (ECA). The EMB
Region XI denied the application after finding that the proposed project was within an environmentally critical area and ruled that,
pursuant to Section 2, Presidential Decree No. 1586, otherwise known as the Environmental Impact Statement System, in relation to
Section 4 of Presidential Decree No. 1151, also known as the Philippine Environment Policy, the City of Davao must undergo the
environmental impact assessment (EIA) process to secure an Environmental Compliance Certificate (ECC), before it can proceed with
the construction of its project.

Believing that it was entitled to a Certificate of Non-Coverage, respondent filed a petition for mandamus and injunction with the
Regional Trial Court of Davao, docketed as Civil Case No. 28, 133-2000. It alleged that its proposed project was neither an
environmentally critical project nor within an environmentally critical area; thus it was outside the scope of the EIS system. Hence, it
was the ministerial duty of the DENR, through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of the
required documents.

The Regional Trial Court rendered judgment in favor of respondent, the dispositive portion of which reads as follows:chanrob1es
virtual 1aw library

WHEREFORE, finding the petition to be meritorious, judgment granting the writ of mandamus and injunction is hereby rendered in
favor of the petitioner City of Davao and against respondents Department of Environment and Natural Resources and the other
respondents by:chanrob1es virtual 1aw library

1) directing the respondents to issue in favor of the petitioner City of Davao a Certificate of Non-Coverage, pursuant to Presidential
Decree No. 1586 and related laws, in connection with the construction by the City of Davao of the Artica Sports Dome;

2) making the preliminary injunction issued on December 12, 2000 permanent.

Costs de oficio.

SO ORDERED. 3

The trial court ratiocinated that there is nothing in PD 1586, in relation to PD 1151 and Letter of Instruction No. 1179 (prescribing
guidelines for compliance with the EIA system), which requires local government units (LGUs) to comply with the EIS law. Only
agencies and instrumentalities of the national government, including government owned or controlled corporations, as well as
private corporations, firms and entities are mandated to go through the EIA process for their proposed projects which have
significant effect on the quality of the environment. A local government unit, not being an agency or instrumentality of the National
Government, is deemed excluded under the principle of expressio unius est exclusio alterius.

The trial court also declared, based on the certifications of the DENR-Community Environment and Natural Resources Office
(CENRO)-West, and the data gathered from the Philippine Institute of Volcanology and Seismology (PHIVOLCS), that the site for the
Artica Sports Dome was not within an environmentally critical area. Neither was the project an environmentally critical one. It
therefore becomes mandatory for the DENR, through the EMB Region XI, to approve respondent’s application for CNC after it has
satisfied all the requirements for its issuance. Accordingly, petitioner can be compelled by a writ of mandamus to issue the CNC, if it
refuses to do so.

Petitioner filed a motion for reconsideration, however, the same was denied. Hence, the instant petition for review.

With the supervening change of administration, respondent, in lieu of a comment, filed a manifestation expressing its agreement
with petitioner that, indeed, it needs to secure an ECC for its proposed project. It thus rendered the instant petition moot and
academic. However, for the guidance of the implementors of the EIS law and pursuant to our symbolic function to educate the
bench and bar, 4 we are inclined to address the issue raised in this petition.

Section 15 of Republic Act 7160, 5 otherwise known as the Local Government Code, defines a local government unit as a body politic
and corporate endowed with powers to be exercised by it in conformity with law. As such, it performs dual functions, governmental
and proprietary. Governmental functions are those that concern the health, safety and the advancement of the public good or
welfare as affecting the public generally. 6 Proprietary functions are those that seek to obtain special corporate benefits or earn
pecuniary profit and intended for private advantage and benefit. 7 When exercising governmental powers and performing
governmental duties, an LGU is an agency of the national government. 8 When engaged in corporate activities, it acts as an agent of
the community in the administration of local affairs. 9

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s right to a balanced ecology. 10
Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed
with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD
1586.chanrob1es virtua1 1aw 1ibrary

Further, it is a rule of statutory construction that every part of a statute must be interpreted with reference to the context, i.e., that
every part must be considered with other parts, and kept subservient to the general intent of the enactment. 11 The trial court, in
declaring local government units as exempt from the coverage of the EIS law, failed to relate Section 2 of PD 1586 12 to the
following provisions of the same law:chanrob1es virtual 1aw library

WHEREAS, the pursuit of a comprehensive and integrated environmental protection program necessitates the establishment and
institutionalization of a system whereby the exigencies of socio-economic undertakings can be reconciled with the requirements of
environmental quality; . . .

Section 1. Policy. — It is hereby declared the policy of the State to attain and maintain a rational and orderly balance between socio-
economic growth and environmental protection.

x           x           x

Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — The President of the Philippines may, on his
own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate
any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by
the President or his duly authorized representative. For the proper management of said critical project or area, the President may by
his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the
realignment of government personnel, and their specific functions and responsibilities.

Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his
duly authorized representative." 13 The Civil Code defines a person as either natural or juridical. The state and its political
subdivisions, i.e., the local government units 14 are juridical persons. 15 Undoubtedly therefore, local government units are not
excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a balance between
socio-economic development and environmental protection, which are the twin goals of sustainable development. The above-
quoted first paragraph of the Whereas clause stresses that this can only be possible if we adopt a comprehensive and integrated
environmental protection program where all the sectors of the community are involved, i.e., the government and the private
sectors. The local government units, as part of the machinery of the government, cannot therefore be deemed as outside the scope
of the EIS system. 16

The foregoing arguments, however, presuppose that a project, for which an Environmental Compliance Certificate is necessary, is
environmentally critical or within an environmentally critical area. In the case at bar, respondent has sufficiently shown that the
Artica Sports Dome will not have a significant negative environmental impact because it is not an environmentally critical project and
it is not located in an environmentally critical area. In support of this contention, respondent submitted the following:chanrob1es
virtual 1aw library

1. Certification from the City Planning and Development Office that the project is not located in an environmentally critical area;

2. Certification from the Community Environment and Natural Resources Office (CENRO-West) that the project area is within the 18-
30% slope, is outside the scope of the NIPAS (R.A. 7586), and not within a declared watershed area; and

3. Certification from PHILVOCS that the project site is thirty-seven (37) kilometers southeast of the southernmost extension of the
Davao River Fault and forty-five (45) kilometers west of the Eastern Mindanao Fault; and is outside the required minimum buffer
zone of five (5) meters from a fault zone.

The trial court, after a consideration of the evidence, found that the Artica Sports Dome is not within an environmentally critical
area. Neither is it an environmentally critical project. It is axiomatic that factual findings of the trial court, when fully supported by
the evidence on record, are binding upon this Court and will not be disturbed on appeal. 17 This Court is not a trier of facts. 18

There are exceptional instances when this Court may disregard factual findings of the trial court, namely: a) when the conclusion is a
finding grounded entirely on speculations, surmises, or conjectures; b) when the inference made is manifestly mistaken, absurd, or
impossible; c) where there is a grave abuse of discretion; d) when the judgment is based on a misapprehension of facts; e) when the
findings of fact are conflicting; f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same
are contrary to the admissions of both appellant and appellee; g) when the findings of the Court of Appeals are contrary to those of
the trial court; h) when the findings of fact are conclusions without citation of specific evidence on which they are based; i) when the
finding of fact of the Court of Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on
record; and j) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion. 19 None of these exceptions, however, obtain in this case.

The Environmental Impact Statement System, which ensures environmental protection and regulates certain government activities
affecting the environment, was established by Presidential Decree No. 1586. Section 2 thereof states:chanrob1es virtual 1aw library

There is hereby established an Environmental Impact Statement System founded and based on the environmental impact statement
required under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities of the national government, including
government-owned or controlled corporations, as well as private corporations, firms and entities, for every proposed project and
undertaking which significantly affect the quality of the environment.

Section 4 of PD 1151, on the other hand, provides:chanrob1es virtual 1aw library

Environmental Impact Statements. — Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the
national government, including government-owned or controlled corporations, as well as private corporations, firms and entities
shall prepare, file and include in every action, project or undertaking which significantly affects the quality of the environment a
detailed statement on —

(a) the environmental impact of the proposed action, project or undertaking

(b) any adverse environmental effect which cannot be avoided should the proposal be implemented

(c) alternative to the proposed action

(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and
enhancement of the long-term productivity of the same; and

(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use and
commitment are warranted.

Before an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on,
the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30)
days from receipt of the same.

Under Article II, Section 1, of the Rules and Regulations Implementing PD 1586, the declaration of certain projects or areas as
environmentally critical, and which shall fall within the scope of the Environmental Impact Statement System, shall be by
Presidential Proclamation, in accordance with Section 4 of PD 1586 quoted above.

Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, proclaiming the following areas and types of projects as
environmentally critical and within the scope of the Environmental Impact Statement System established under PD 1586:chanrob1es
virtual 1aw library

A. Environmentally Critical Projects

I. Heavy Industries

a. Non-ferrous metal industries

b. Iron and steel mills

c. Petroleum and petro-chemical industries including oil and gas

d. Smelting plants

II. Resource Extractive Industries

a. Major mining and quarrying projects

b. Forestry projects

1. Logging

2. Major wood processing projects

3. Introduction of fauna (exotic-animals) in public/private forests

4. Forest occupancy

5. Extraction of mangrove products

6. Grazing

c. Fishery Projects

1. Dikes for/and fishpond development projects

III. Infrastructure Projects

a. Major dams

b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)

c. Major reclamation projects

d. Major roads and bridges

B. Environmentally Critical Areas

1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;

2. Areas set aside as aesthetic potential tourist spots;

3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna);

4. Areas of unique historic, archaeological, or scientific interests;

5. Areas which are traditionally occupied by cultural communities or tribes;

6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic activity, etc.);

7. Areas with critical slopes;

8. Areas classified as prime agricultural lands;

9. Recharged areas of aquifers;

10. Water bodies characterized by one or any combination of the following conditions;

a. tapped for domestic purposes

b. within the controlled and/or protected areas declared by appropriate authorities

c. which support wildlife and fishery activities

11. Mangrove areas characterized by one or any combination of the following conditions:chanrob1es virtual 1aw library

a. with primary pristine and dense young growth;

b. adjoining mouth of major river systems;

c. near or adjacent to traditional productive fry or fishing grounds;

d. which act as natural buffers against shore erosion, strong winds and storm floods;

e. on which people are dependent for their livelihood.

12. Coral reefs, characterized by one or any combinations of the following conditions:chanrob1es virtual 1aw library

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;

c. which act as natural breakwater of coastlines.

In this connection, Section 5 of PD 1586 expressly states:chanrob1es virtual 1aw library

Environmentally Non-Critical Projects. — All other projects, undertakings and areas not declared by the President as environmentally
critical shall be considered as non-critical and shall not be required to submit an environmental impact statement. The National
Environmental Protection Council, thru the Ministry of Human Settlements may however require non-critical projects and
undertakings to provide additional environmental safeguards as it may deem necessary.

The Artica Sports Dome in Langub does not come close to any of the projects or areas enumerated above. Neither is it analogous to
any of them. It is clear, therefore, that the said project is not classified as environmentally critical, or within an environmentally
critical area. Consequently, the DENR has no choice but to issue the Certificate of Non-Coverage. It becomes its ministerial duty, the
performance of which can be compelled by writ of mandamus, such as that issued by the trial court in the case at bar.chanrob1es
virtua1 1aw 1ibrary

WHEREFORE, in view of the foregoing, the instant petition is DENIED. The decision of the Regional Trial Court of Davao City, Branch
33, in Civil Case No. 28,133-2000, granting the writ of mandamus and directing the Department of Environment and Natural
Resources to issue in favor of the City of Davao a Certificate of Non-Coverage, pursuant to Presidential Decree No. 1586 and related
laws, in connection with the construction of the Artica Sports Dome, is AFFIRMED.

SO ORDERED.

SECOND DIVISION

G.R. No. 145972             March 23, 2004

IGNACIA BALICAS, petitioner,
vs.
FACT-FINDING & INTELLIGENCE BUREAU (FFIB), OFFICE OF THE OMBUDSMAN, respondents.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Court of Appeals’ decision1 dated August 25, 2000 and resolution2 of November 13,
2000 in CA-G.R. SP No. 56386, which affirmed the Ombudsman’s decision 3 dismissing petitioner from government service for gross
neglect of duty in connection with the tragedy at the Cherry Hills Subdivision in Antipolo City on August 3, 1999.

The antecedent facts as summarized in the Ombudsman’s decision are as follows:

Based on the evidence adduced by the complainant, the following is the chronological series of events which led to the
development of the CHS (Cherry Hills Subdivision):

August 28, 1990 – Philjas Corporation, whose primary purposes, among others are: to own, develop, subdivide, market and
provide low-cost housing for the poor, was registered with the Securities and Exchange Commission (SEC).

February 19, 1991 – then City Mayor Daniel S. Garcia, endorsed to the Housing and Land Use Regulatory Board (HLURB) the
proposed CHS.

Thereafter, or on 07 March 1991, based on the favorable recommendations of Mayor Garcia, respondent TAN, issued the
Preliminary Approval and Locational Clearance (PALC) for the development of CHS.

On July 5, 1991, then HLURB Commissioner respondent TUNGPALAN issued Development Permit No. 91-0216 for "land
development only" for the entire land area of 12.1034 hectares covered by TCT No. 35083 (now TCT 208837) and with
1,003 saleable lots/units with project classification B.P. 220 Model A-Socialized Housing (p. 96, Records), with several
conditions for its development.

Three (3) days thereafter or on July 8, 1991, respondent JASARENO, allowed/granted the leveling/earth-moving operations
of the development project of the area subject to certain conditions.

On November 18, 1991, then HLURB Commissioner AMADO B. DELORIA issued Certificate of Registration No. 91-11-0576 in
favor of CHS, with License to Sell No. 91-11-0592 for the 1,007 lots/units in the subdivision.

Eventually, on December 10, 1991, respondent POLLISCO issued Small Scale Mining Permit (SSMP) No. IV-316 to Philjas to
extract and remove 10,000 cu. meters of filling materials from the area where the CHS is located.

Thereafter, or on January 12, 1994, Philjas applied for a Small Scale Mining Permit (SSMP) under P.D. 1899 with the Rizal
Provincial Government to extract and remove 50,000 metric tons of filling materials per annum on CHS’ 2.8 hectares.

Thus, on January 17, 1994, respondent MAGNO, informed ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS System
and as such must secure ECC from the DENR. Philjas was accordingly informed of the matter such that it applied for the
issuance of ECC from the DENR-Region IV, on February 3, 1994.

On March 12, 1994, an Inspection Report allegedly prepared by respondent BALICAS, attested by respondent RUTAQUIO
and approved by respondent TOLENTINO re: field evaluation to the issuance of ECC, was submitted.

Consequently, on April 28, 1994, upon recommendations of respondent TOLENTINO, Philjas’ application for ECC was
approved by respondent PRINCIPE, then Regional Executive Director, DENR under ECC-137-R1-212-94.

A Mining Field Report for SSMP dated May 10, 1994 was submitted pursuant to the inspection report prepared by
respondents CAYETANO, FELICIANO, HILADO and BURGOS, based on their inspection conducted on April 25 to 29, 1994. The
 report recommended, among others, that the proposed extraction of materials would pose no adverse effect to the
environment.

Records further disclosed that on August 10, 1994, respondent BALICAS monitored the implementation of the CHS Project
Development to check compliance with the terms and conditions in the ECC. Again, on August 23, 1995, she conducted
another monitoring on the project for the same purpose. In both instances, she noted that the project was still in the
construction stage hence, compliance with the stipulated conditions could not be fully assessed, and therefore, a follow-up
monitoring is proper. It appeared from the records that this August 23, 1995 monitoring inspection was the last one
conducted by the DENR.

On September 24, 1994, GOV. CASIMIRO I. YNARES, JR., approved the SSMP applied for by Philjas under SSMP No. RZL-012,
allowing Philjas to extract and remove 50,000 metric tons of filling materials from the area for a period of two (2) years
from date of its issue until September 6, 1996.4

Immediately after the tragic incident on August 3, 1999, a fact-finding investigation was conducted by the Office of the Ombudsman
through its Fact-Finding and Intelligence Bureau (FFIB), which duly filed an administrative complaint with the Office of the
Ombudsman against several officials of the Housing and Land Use Regulatory Board (HLURB), Department of Environment and
Natural Resources (DENR), and the local government of Antipolo.

The charge against petitioner involved a supposed failure on her part to monitor and inspect the development of Cherry Hills
Subdivision, which was assumed to be her duty as DENR senior environmental management specialist assigned in the province of
Rizal.

For her part, petitioner belied allegations that monitoring was not conducted, claiming that she monitored the development of
Cherry Hills Subdivision as evidenced by three (3) monitoring reports dated March 12, 1994, August 10, 1994 and August 23, 1995.
She averred that she also conducted subsequent compliance monitoring of the terms and conditions of Philjas’ Environmental
Compliance Certificate (ECC) on May 19, 1997 and noted no violation thereon. She further claimed good faith and exercise of due
diligence, insisting that the tragedy was a fortuitous event. She reasoned that the collapse did not occur in Cherry Hills, but in the
adjacent mountain eastern side of the subdivision.

On November 15, 1999, the Office of the Ombudsman rendered a decision imposing upon petitioner the supreme penalty of
dismissal from office for gross neglect of duty finding:

RESPONDENT BALICAS

Records show that she monitored and inspected the CHS [Cherry Hills Subdivision] only thrice (3), to wit:

1. Inspection Report dated 12 March 1994

2. Monitoring Report dated 10 August 1994

3. Monitoring Report dated 23 August 1995

Verily, with this scant frequency, how can respondent Balicas sweepingly claim that there was no violation of ECC
compliance and that she had done what is necessary in accordance with the regular performance of her duties. She herself
recognized the fact that the "collapsed area is not the subdivision in question but the adjacent mountain eastern side of the
CHS." It is incumbent upon her to establish the same in her monitoring and inspection reports and make objective
recommendations re: its possible adverse effect to the environment and to the residents of the CHS and nearby areas. Her
defense that the position of the CHS shows the impossibility of checking the would-be adverse effect clearly established her
incompetence. No expert mind is needed to know that mountains cause landslide and erosion. Cherry Hills Subdivision is a
living witness to this.5

Petitioner seasonably filed a petition for review of the Ombudsman’s decision with the Court of Appeals. In its decision dated August
25, 2000, the Court of Appeals dismissed the petition for lack of merit and affirmed the appealed decision. It found that the landslide
was a preventable occurrence and that petitioner was guilty of gross negligence in failing to closely monitor Philjas’ compliance with
the conditions of the ECC given the known inherent instability of the ground where the subdivision was developed. The appellate
court likewise denied petitioner’s motion for reconsideration in its resolution dated November 13, 2000.
Petitioner now comes to this Court for review on certiorari, under Rule 45 of the Rules of Civil Procedure, of the appellate court’s
decision. She alleges that the Court of Appeals committed serious errors of law in affirming the Ombudsman’s conclusion that:

1 There was gross negligence on the part of petitioner Balicas in the performance of her official duties as Senior
Environmental Management Specialist (SEMS) of the Provincial Environment and Natural Resources Office (PENRO)
Province of Rizal, DENR Region IV; and the alleged gross neglect of duty of petitioner warranted the imposition of the
extreme penalty of dismissal from the service.

2. The landslide which caused the death of several residents of the subdivision and the destruction of property is not a
fortuitous event and therefore preventible.6

The main issues are whether or not the Court of Appeals committed serious errors of law in: (1) holding petitioner guilty of gross
neglect of duty and (2) imposing upon her the extreme penalty of dismissal from office.

In order to ascertain if there had been gross neglect of duty, we have to look at the lawfully prescribed duties of petitioner.
Unfortunately, DENR regulations are silent on the specific duties of a senior environmental management specialist. Internal
regulations merely speak of the functions of the Provincial Environment and Natural Resources Office (PENRO) to which petitioner
directly reports.

Nonetheless, petitioner relies on a letter7 dated December 13, 1999 from the chief of personnel, DENR Region IV, which defines the
duties of a senior environmental management specialist as follows:

1. Conducts investigation of pollution sources or complaints;

2. Review[s] plans and specifications of proposes (sic) or existing treatment plants and pollution abatement structures and
devices to determine their efficiency and suitability for the kind of pollutants to be removed and to recommend issuance or
denial of permits;

3. Conducts follow-up inspection of construction of pollution abatement/work and structures to oversee compliance with
approved plans and specifications;

4. Recommends remedial measures for the prevention, abatement and control of pollution;

5. Prepares technical reports on pollution investigation and related activities; and

6. Performs related work as assigned.

It is readily apparent that no monitoring duty whatsoever is mentioned in the said letter. The PENRO, on the other hand, is
mandated to:

1. conduct surveillance and inspection of pollution sources and control facilities and undertake/initiate measures relative to
pollution-related complaints of the general public for appropriate referral to the regional office;

2. comment on the project description, determine if the project fall within the Environmental Impact Statement (EIS)
System8 and submit the same to the regional office; and

3. implement programs and projects related to environmental management within the PENRO. 9

In addition, the PENRO is likewise tasked to monitor the project proponent’s compliance with the conditions stipulated in the ECC,
with support from the DENR regional office and the Environmental Management Bureau. 10 The primary purpose of compliance
monitoring is to ensure the judicious implementation of sound and standard environmental quality during the development stage of
a particular project. Specifically, it aims to:

1. monitor project compliance with the conditions set in the ECC;

2. monitor compliance with the Environmental Management Plan (EMP) and applicable laws, rules and regulations; and
 3. provide a basis for timely decision-making and effective planning and management of environmental measures through
the monitoring of actual project impacts vis-à-vis predicted impacts in the EIS. 11

Based on the foregoing, the monitoring duties of the PENRO mainly deal with broad environmental concerns, particularly pollution
abatement. This general monitoring duty is applicable to all types of physical developments that may adversely impact on the
environment, whether housing projects, industrial sites, recreational facilities, or scientific undertakings.

However, a more specific monitoring duty is imposed on the HLURB as the sole regulatory body for housing and land development. It
is mandated to encourage greater private sector participation in low-cost housing through (1) liberalization of development
standards, (2) simplification of regulations and (3) decentralization of approvals for permits and licenses. 12

P.D. No. 158613 prescribes the following duties on the HLURB (then Ministry of Human Settlements) in connection with
environmentally critical projects requiring an ECC:

SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. – The President of the Philippines may,
on his own initiative or upon recommendation of the National Environment Protection Council, by proclamation declare
certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation
shall undertake or operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his proclamation reorganize such government offices,
agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their
specific functions and responsibilities.

For the same purpose as above, the Ministry of Human Settlements [now HLURB] shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop
a program of environmental enhancement or protective measures against calamitous factors such as earthquake, floods,
water erosion and others; and (d) perform such other functions as may be directed by the President from time to time.
(Emphasis ours.)

The legal duty to monitor housing projects, like the Cherry Hills Subdivision, against calamities such as landslides due to continuous
rain, is clearly placed on the HLURB, not on the petitioner as PENRO senior environmental management specialist. In fact, the law
imposes no clear and direct duty on petitioner to perform such narrowly defined monitoring function.

In the related case of Principe v. Fact-Finding and Intelligence Bureau,14 this Court found Antonio Principe, regional executive director
for DENR Region IV who approved Philjas’ application for ECC, not liable for gross neglect of duty. The Court reversed the decision of
the Court of Appeals and thereby annulled the decision of the Ombudsman in OMB-ADM-09-661, dated December 1, 1999,
dismissing Principe from the government service. We ordered his reinstatement with back pay and without loss of seniority. 15

The rationale for our decision in Principe bears reiteration: the responsibility of monitoring housing and land development projects is
not lodged with the DENR, but with the HLURB as the sole regulatory body for housing and land development. Thus, we must stress
that we find no legal basis to hold petitioner, who is an officer of DENR, liable for gross neglect of the duty pertaining to another
agency, the HLURB. It was grave error for the appellate court to sustain the Ombudsman’s ruling that she should be dismissed from
the service. The reinstatement of petitioner is clearly called for.

WHEREFORE, the petition is hereby GRANTED. The Court of Appeals’ decision affirming the Ombudsman’s dismissal of petitioner
IGNACIA BALICAS from office is REVERSED and SET ASIDE, and petitioner’s REINSTATEMENT to her position with back pay and
without loss of seniority rights is hereby ordered.

SO ORDERED.

EN BANC

G.R. No. 145973            January 23, 2002

ANTONIO G. PRINCIPE, petitioner,
vs.
FACT-FINDING & INTELLIGENCE, BUREAU (FFIB), OFFICE OF THE OMBUDSMAN, respondents.
PARDO, J.:

The Case

The case is a petition for review on certiorari seeking to reverse the decision of the Court of Appeals 1 affirming the Ombudsman’s
dismissal of petitioner from the government service for gross neglect of duty in connection with the collapse of the housing project
at the Cherry Hills Subdivision, Antipolo City, on August 3, 1999.

The Facts

The facts, as found by the Court of Appeals, are as follows:

"August 28, 1990- Philjas Corporation, whose primary purposes, among others are: to own, develop, subdivide, market and
provide low-cost housing for the poor, was registered with the Securities and Exchange Commission (SEC).

"February 19, 1991 - then City Mayor Daniel S. Garcia, endorsed to the Housing and Land Use Regulatory Board (HLURB) the
proposed CHS.

"Thereafter, or on 07 March 1991, based on the favorable recommendation of Mayor Garcia, respondent TAN, issued the
Preliminary Approval and Locational Clearance (PALC) for the development of CHS.

"On July 5, 1991, then HLURB Commissioner respondent TUNGPALAN issued Development Permit No. 91-0216 for "land
development only" for the entire land area of 12.1034 hectares covered by TCT No. 35083 (now TCT 208837) and with
1,003 saleable lots/units with project classification B. P. 220 Model A-Socialized Housing (p. 96, Records), with several
conditions for its development.

"Three (3) days thereafter or on July 8, 1991, respondent JASARENO, allowed/granted the leveling/earth-moving operations
of the development project of the area subject to certain conditions.

"On November 18, 1991, then HLURB Commissioner AMADO B. DELORIA issued Certificate of Registration No. 91-11-0576
in favor of CHS, with License to Sell No. 91-11-0592 for the 1,007 lots/units in the subdivision.

"Eventually, on December 10, 1991, respondent POLLISCO issued Small Scale Mining Permit (SSMP) No. IV-316 to Philjas to
extract and remove 10,000 cu. meters of filling materials from the area where the CHS is located.

"Thereafter, or on January 12, 1994, Philjas applied for a Small Scale Mining Permit (SSMP) under P. D. 1899 with the Rizal
Provincial Government to extract and remove 50,000 metric tons of filling materials per annum on CHS’ 2.8 hectares.

"Thus, on January 17, 1994, respondent MAGNO, informed ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS
System and as such must secure ECC from the DENR. Philjas was accordingly informed of the matter such that it applied for
the issuance of ECC from the DENR-Region IV, on February 3, 1994.

"On March 12, 1994, an Inspection Report allegedly prepared by respondent BALICAS, attested by respondent RUTAQUIO
and approved by respondent TOLENTINO re: field evaluation to the issuance of ECC, was submitted.

"Consequently, on April 28, 1994, upon recommendation of respondent TOLENTINO, Philjas application for ECC was
approved by respondent PRINCIPE, then Regional Executive Director, DENR under ECC-137-RI-212-94.

"A Mining Field Report for SSMP dated May 10, 1994 was submitted pursuant to the inspection report prepared by
respondents CAYETANO, FELICIANO, HILADO and BURGOS, based on their inspection conducted on April 25 to 29, 1994. The
report recommended, among others, that the proposed extraction of materials would pose no adverse effect to the
environment.

"Records further disclosed that on August 10, 1994, respondent BALICAS monitored the implementation of the CHS Project
Development to check compliance with the terms and conditions in the ECC. Again, on August 23, 1995, she conducted
another monitoring on the project for the same purpose. In both instances, she noted that the project was still in the
 construction stage hence, compliance with the stipulated conditions could not be fully assessed, and therefore, a follow-up
monitoring inspection was the last one conducted by the DENR.

"On September 24, 1994, GOV. CASIMIRO I. YNARES, JR., approved the SSMP applied for by Philjas under SSMP No. RZL-
012, allowing Philjas to extract and remove 50,000 metric tons of filling materials from the area for a period of two (2) years
from date of its issue until September 6, 1996."2

On November 15, 1999, the Ombudsman rendered a decision finding petitioner Principe administratively liable for gross neglect of
duty and imposing upon him the penalty of dismissal from office. The dispositive portion of the decision reads:

"WHEREFORE, premises considered x x x

xxx

x x x the following respondents are hereby found GUILTY as charged and meted the respective penalties provided under
Section 22, Rule XIV of the Omnibus Rules, Implementing Book V of Executive Order No. 292, otherwise known as the
Administrative Code of 1987, viz,:

1. x x x

5. Antonio G. Principe - Penalty of Dismissal from the Service for Gross Neglect of Duty.

xxx

SO ORDERED."3

On January 4, 2000, petitioner filed with the Court of Appeals a petition for review assailing the decision of the Ombudsman. 4

On August 25, 2000, the Court of Appeals promulgated a decision denying the petition and affirming the decision of the
Ombudsman.5

Hence, this appeal.6

The Issue

The issue raised is whether the Ombudsman may dismiss petitioner from the service on an administrative charge for gross neglect of
duty, initiated, investigated and decided by the Ombudsman himself without substantial evidence to support his finding of gross
neglect of duty because the duty to monitor and inspect the project was not vested in petitioner.

The Court's Ruling

Republic Act No. 6770, Section 15, prescribed the powers of the Ombudsman, as follows:

"Section 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and
duties:

"(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction it may take over, at
any stage, from any investigatory agency of Government, the investigation of such cases;

"(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency
or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform
and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance
of duties;
 "(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to
perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 7 of this
Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove,
suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or
discharge a duty required by law shall be a ground for disciplinary action against said officer;

"(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of
procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving
the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for
appropriate action;

"(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to
examine, if necessary, pertinent records and documents;

"(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when
circumstances so warrant and with due prudence: Provided, further, that any publicity issued by the Ombudsman shall be
balance, fair and true;

"(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make
recommendations for their elimination and the observance of high standards of ethics and efficiency;

"(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry,
including the power to examine and have access to bank accounts and records;

"(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties
provided therein;

"(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective
exercise or performance of the powers, functions, and duties herein or hereinafter provided;

"(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after
February 25, 1986 and the prosecution of the parties involved therein." 8

The Ombudsman without taking into consideration the lawfully mandated duties and functions attached to petitioner’s position,
immediately concluded that as the signing and approving authority of the ECC issued to PHILJAS, it was incumbent upon petitioner
to conduct actual monitoring and enforce strict compliance with the terms and conditions of the ECC.

The applicable administrative orders provide that the function of monitoring environmental programs, projects and activities in the
region is lodged with the Regional Technical Director, not with the Regional Executive Director, the position occupied by petitioner.
Under DAO 38-1990, the following were the functions attached to the office of petitioner, to wit:

"I. REGULATORY MATTERS

"D. REGIONAL EXECUTIVE DIRECTOR

"1. Forest Management

"2. Land Management

"3. Mines and Geo-Sciences Development

"4. Environmental Management

"4.1 Issues authority to construct and permit to operate pollution control equipment/devices including the
collection of corresponding fees/charges.
 "4.2 Issues accreditation of pollution control office of industrial firms and local government entities.

"4.3 Hears/gathers evidences or facts on pollution cases as delegated by the Pollution Adjudication Board.

"4.4. Approves plans and issues permit for mine tailings disposal, including environmental rehabilitation plans." 9

Clearly, there is no mention of the responsibility of a regional executive director to monitor projects. More apropos is the description
of the functions of a regional technical director, to wit:

"E. REGIONAL TECHNICAL DIRECTOR

"1. Forest Management

"2. Land Management

"3. Mines and Geo-Sciences Development

"4. Environmental Management

"4.1 Issues clearance certificate to vehicles which have passed the smoke-belching test.

"4.2 Issues pollution clearance and temporary permit to operate pollution control devices including the collection
of corresponding fees/charges.

"4.3 Conducts monitoring and investigation of pollution sources and control facilities.

"4.4 Supervises, coordinates and monitors the implementation of environmental programs, projects and
activities in the region."10 [emphasis supplied]

Furthermore, monitoring is defined in DAO No. 21, Series of 1992, as the activity designed to gauge the level of compliance with the
conditions stipulated in the ECC,11 and in the EIS12 or PD13 submitted.14 This is the function of the PENR and CENR offices as mandated
in DAO No. 37, Series of 1996.15 Particularly, it provided that:

"Section 10. Compliance Monitoring

"x x x

"b. Monitoring of compliance with the proponent’s ECC issued pursuant to an IEE, 16 and applicable laws, rules and
regulations, shall be undertaken by the concerned PENRO and CENRO with support from the Regional Office and/or EMB
whenever necessary."

Hence, how could petitioner be guilty of neglecting a duty, which is not even his to begin with? Administrative liability could not be
based on the fact that petitioner was the person who signed and approved the ECC, without proof of actual act or omission
constituting neglect of duty.

In the absence of substantial evidence of gross neglect of petitioner, administrative liability could not be based on the principle of
command responsibility.17 The negligence of petitioner’s subordinates is not tantamount to his own negligence.

It was not within the mandated responsibilities of petitioner to conduct actual monitoring of projects. The principles governing
public officers under the Revised Administrative Code of 1987 clearly provide that a head of a department or a superior officer shall
not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually
authorized by written order the specific act or misconduct complained of. 18

The investigation conducted by the Ombudsman refers to the tragic incident in Cherry Hills Subdivision, Antipolo Rizal, where several
families lost lives and homes. Despite the fact that what was involved was a housing and land development project, petitioner, as
the Regional Executive Director for Region IV, Department of Environment and Natural Resources, was found negligent because he
was the one who signed and approved the ECC.

As heretofore stated, the responsibility of monitoring housing and land development projects is not lodged with the office of
petitioner. The Administrative Code of 1987 spelled out the mandate of the Department of Environment and Natural Resources, the
agency that has authority over petitioner, which reads:

"Section 1. Declaration of Policy.- (1) The State shall ensure for the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization, management, renewal and conservation of the country’s
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources equitably accessible to the different
segments of the present as well as future generations.

"(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost
implications relative to the utilization, development and conservation of our natural resources.

"Section 2. Mandate.- (1) The Department of Environment and Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.

"(2) It shall, subject to law and higher authority, be in charge of carrying out the State’s constitutional mandate to control
and supervise the exploration, development, utilization, and conservation of the country’s natural resources." 19

However, pursuant to Executive Order No. 90,20 the Human Settlements Regulatory Commission, which became the Housing and
Land Use Regulatory Board (HLURB), is the sole regulatory body for housing and land development. 21

The Fallo

WHEREFORE, the Court REVERSES the decision of the Court of Appeals.22 In lieu thereof, the Court annuls the decision of the
Ombudsman in OMB-ADM-09-661, dated December 1, 1999, dismissing the petitioner from the government service, and orders his
reinstatement with back pay and without loss of seniority.

No costs.

SO ORDERED.