Gatmaytan PDF

ARTICLES DANTE GATMAYTAN-MAGNO∗

Judicial Restraint and the Enforcement of Environmental Environmental Rights in the Philippines I. II.

Oposa v. Factoran .................. ........................... .................. .................. ................... ................... ............. .... 4 A. Misreading Oposa ................... ............................ .................. .................. .................. ............... ...... 6 After Oposa ................. ........................... ................... .................. .................. .................. .................. ............... ...... 8 Transportation Franchising Franchising and A. Henares v. Land Transportation Regulatory Board .................. ........................... .................. .................. ................... ................. ....... 8 B. Social Justice Society v. Atienza .................. ........................... .................. ........... .. 11 1. The Original Original Decision Decision ................. .......................... .................. .................. ............ ... 11 2. The Second Second Ruling Ruling......... .................. .................. .................. .................. ................ ....... 12 a. The injunctions against the implementation implementation of Ordinance No. 8027 were improper........... improper..................... .......... 13 b. Ordinance No. 8119 8119 did not repeal repeal Ordinance No. 8027............ 8027..................... ................... ................... .................. .................. .............. ..... 13 c. Ordinance No. 8027 is constitutional and valid... valid ... 14 (i) Manila had the power power to enact enact Ordinance Ordinance No. 8027 .................. ........................... .................. ........... .. 14 (ii) Ordinance No. 8027 meets meets substantive requireme requirements nts for validity validity .................. ........................... ............. .... 15

∗ Associate Professor, University of the Philippines, College of Law; LL.B., University of the Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996. [email protected]. I wish to thank Maria Regina B. Gatmaytan and Sopfia Guira for providing research assistance and Cielo D. Magno for her invaluable comments and suggestions on various drafts of this Article. I also want to thank the staff of the Oregon Review of International Law for their help in preparing this Article for publication.

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d. Ordinance No. 8027 is not inconsistent inconsistent with Republic Act No. 7638 and Republic Act No. 8479 .................. ........................... .................. ................... ................... .................. .............. ..... 16 e. The Department of Energy cannot exercise the power of control control over local governm government ent units ..... 17 Manila Development Authority Authority v. C. Metropolitan Manila Concerned Citizens of Manila Bay .................. ........................... ................ ....... 18 III. Courts and the Enforcement of Environmental Rights........... 22 A. The Indian Experience...................... .................. ............. 22 B. The Theoretical Bases of Judicial Activism.................... Activism....... ............. 24 IV. New Directions in Environmental Law and Litigation .......... 26 Conclusion.................. .................. ................. .................. ................. . 29 Epilogue Epilogue .................. ........................... ................... ................... .................. .................. ................... ................... .................. ......... 29 The Philippine Supreme Court’s 1993 decision in Oposa v. 1 Factoran was an instant international sensation, drawing praise from lawyers and activists from virtually every corner of the world. Oposa was hailed as “the first environmental decision to be based squarely 2 on principles of intergenerational equity.” While the case continues to generate attention and acclaim,3 my own view is that Oposa has been misunderstood and that the case offers little outside of rhetoric. 4 The Court did not, as some continue to believe, order an end to logging in the Philippines pursuant to a constitutional right to a 5 balanced and healthful environment. Oposa was stillborn and should have been buried immediately. But persistent prodding by well-meaning activists and academics breathed just enough life into the case to put it in a comatose state. 1 Minors Oposa v. Factoran, G.R. No. 101083, 224 S.C.R.A. 792 (July 30, 1993) (Phil.) [hereinafter Minors Oposa]. 2 Paul A. Barresi, Beyond Fairness to Future Generations: Generations: An Intragenerational Intragenerational Alternative to Intergeneration Intergenerational al Equity in the International International Environmental Environmental Arena Arena , 11 TUL. ENVTL. L.J. 59, 82 (1997). 3 See, e.g., e.g., Jon Owens, Comparative Law and Standing to Sue: A Petition for Redress for the Environment Environment , 7 ENVTL. LAW. 321, 342 (2001); Philip Weinberg, Unbarring the Bar of Justice: Standing in Environmental Environmental Suits and the Constitution , 21 PACE ENVTL. L. REV. 27, 50–51 (2003); Joshua J. Bruckerhoff, Note, Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights , 86 TEX. L. REV. 615, 629–30 (2008). 4 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, Victory, 15 GEO. INT’L ENVTL. L. REV. 457 (2003) [hereinafter Gatmaytan, The Illusion]. Illusion].

Nikki Kumar, Public Health or Public Harm: DDT, Malaria and the Right to Health , 23 WINDSOR REV. LEGAL & SOC. ISSUES 85, 100 (2007). 5

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d. Ordinance No. 8027 is not inconsistent inconsistent with Republic Act No. 7638 and Republic Act No. 8479 .................. ........................... .................. ................... ................... .................. .............. ..... 16 e. The Department of Energy cannot exercise the power of control control over local governm government ent units ..... 17 Manila Development Authority Authority v. C. Metropolitan Manila Concerned Citizens of Manila Bay .................. ........................... ................ ....... 18 III. Courts and the Enforcement of Environmental Rights........... 22 A. The Indian Experience...................... .................. ............. 22 B. The Theoretical Bases of Judicial Activism.................... Activism....... ............. 24 IV. New Directions in Environmental Law and Litigation .......... 26 Conclusion.................. .................. ................. .................. ................. . 29 Epilogue Epilogue .................. ........................... ................... ................... .................. .................. ................... ................... .................. ......... 29 The Philippine Supreme Court’s 1993 decision in Oposa v. 1 Factoran was an instant international sensation, drawing praise from lawyers and activists from virtually every corner of the world. Oposa was hailed as “the first environmental decision to be based squarely 2 on principles of intergenerational equity.” While the case continues to generate attention and acclaim,3 my own view is that Oposa has been misunderstood and that the case offers little outside of rhetoric. 4 The Court did not, as some continue to believe, order an end to logging in the Philippines pursuant to a constitutional right to a 5 balanced and healthful environment. Oposa was stillborn and should have been buried immediately. But persistent prodding by well-meaning activists and academics breathed just enough life into the case to put it in a comatose state. 1 Minors Oposa v. Factoran, G.R. No. 101083, 224 S.C.R.A. 792 (July 30, 1993) (Phil.) [hereinafter Minors Oposa]. 2 Paul A. Barresi, Beyond Fairness to Future Generations: Generations: An Intragenerational Intragenerational Alternative to Intergeneration Intergenerational al Equity in the International International Environmental Environmental Arena Arena , 11 TUL. ENVTL. L.J. 59, 82 (1997). 3 See, e.g., e.g., Jon Owens, Comparative Law and Standing to Sue: A Petition for Redress for the Environment Environment , 7 ENVTL. LAW. 321, 342 (2001); Philip Weinberg, Unbarring the Bar of Justice: Standing in Environmental Environmental Suits and the Constitution , 21 PACE ENVTL. L. REV. 27, 50–51 (2003); Joshua J. Bruckerhoff, Note, Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights , 86 TEX. L. REV. 615, 629–30 (2008). 4 Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, Victory, 15 GEO. INT’L ENVTL. L. REV. 457 (2003) [hereinafter Gatmaytan, The Illusion]. Illusion].

Nikki Kumar, Public Health or Public Harm: DDT, Malaria and the Right to Health , 23 WINDSOR REV. LEGAL & SOC. ISSUES 85, 100 (2007). 5

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This fascination with the case has distracted activists from pursuing genuine avenues to protect the environment. environment. The Philippine Supreme Court did not build up the environmentalists’ legal arsenal, set precedent for environmental litigation, or set a paradigm shift towards the recognition recognition of intergenerational intergenerational equity. Until recently, recently, in fact, fact, other decisions of the Philippine Supreme Court were hostile towards 6 the environment. In cases decided in the last few years, however, the Court has crafted an alternative jurisprudence for environmental protection— one with more substance substance and less less flair. There are three significant cases that are studied studied in this Article. Article. The first case, Henares v. Land Transportation Franchising and Regulatory Board, 7 shows how the Supreme Court has abandoned its proactive stance on the environment and now defers to Congress for solutions to environmental issues. The second case, Social Justice Society v. 8 Atienza, directs litigants’ attention to local government remedies for environmental protection. In the third case, Metropolitan Manila Development Authority (MMDA) v. Concerned Residents of Manila 9 Bay, the Supreme Court ordered national government agencies to clean the Manila Bay as their duty under their respective charters and a variety of environmental laws. Together, these cases represent an increasingly coherent framework for environmental protection in the Philippines—for Congress, local governments, and the national government. The Court’s environmental environmental jurisprudence jurisprudence shows a clear path that leads away from courts. 10 The Court’s refusal to reprise its role as an activist court preserves the separation of powers among the different branches of government and strengthens the autonomy of local governments. These new decisions may prove to be more helpful to the environment than the Court’s ruling in Oposa sixteen years ago. In

See Dante Gatmaytan-Magno, Artificial Judicial Environmental Environmental Activism: Oposa v. Factoran as Aberration, Aberration, 17 IND. INT’L & COMP. L. REV. 1, 2 (2007) [hereinafter Gatmaytan-Magno, Artificia Gatmaytan-Magno, Artificiall Activism]. Activism]. 6

Henares v. Land Transp. Franchising & Regulatory Bd., G.R. No. 158290, 505 S.C.R.A. 104 (Oct. 23, 2006) (Phil.). 7

8 Social Justice Soc’y v. Atienza, G.R. No. 156052, 517 S.C.R.A. 657 (Mar. 7, 2007), reconsidered , 545 S.C.R.A. 92 (Feb. 13, 2008) (Phil.). 9 Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947– 48, 574 S.C.R.A. 661 (Dec. 18, 2008) (Phil.).

See Ryan K. Gravelle, Note, Enforcing the Elusive: Environmental Rights in East European Constitutio Constitutions ns,, 16 VA. ENVTL. L.J. 633, 656–57 (1997). 10

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the end, this Article will show that the Supreme Court has quietly eased Oposa out of Philippine environmental litigation. Part I of this Article will provide a very brief review of Oposa and my critique of that decision. Part II will discuss the Supreme Court’s decisions in Henares, Atienza, and MMDA. Henares will illustrate the differences in the way the Court is now approaching environmental cases. Henares makes it clear that to obtain any relief from courts, litigants are required to show more than the right to a healthful environment or standing to sue; they need to specify laws that spell out the relief that they are seeking. Atienza, on the other hand, will show the potential uses of local government legislation for environmental protection. Finally, MMDA will illustrate how special environmental laws can be used to compel government agencies to protect the environment. Part III will examine the Philippine Supreme Court’s decisions in environmental cases and compare them with the environmental decisions of the Indian Supreme Court. It will also analyze the Philippine Supreme Court decisions under prevailing theories on the role of courts in the enforcement of social rights. Part IV will show how these decisions of the Philippine Supreme Court have rendered Oposa useless in environmental litigation. Finally, I will make some conclusions as to the future of environmental litigation. I O POSA V . F ACTORAN Oposa v. Factoran was a class suit filed by parents on behalf of their minor children asking the court to order the Secretary of Environment and Natural Resources to cancel all existing timber license agreements in the country and to stop issuing new 11 agreements. The trial court, however, dismissed the case because the plaintiffs failed to allege “a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress” and failed to state a cause of action against the 12 defendant. The trial court also said that the issue involved a matter of public policy that could be properly addressed by the other 13 branches of government. Finally, the trial court added that timber

11

Minors Oposa, supra note 1, at 794.

12 Id.

at 803–04 (quoting the Petition).

13 Id.

at 804.

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license agreements are contracts protected by the non-impairment 14 clause of the Constitution. The plaintiffs elevated the case to the Supreme Court and raised three issues: (1) whether the plaintiffs had a cause of action, (2) whether the issue involved a political question over which the Supreme Court could not assume jurisdiction, and (3) whether a timber license agreement is a contract protected by the non15 impairment clause of the Constitution. The Supreme Court disagreed with the trial court and stated that the complaint focused on the right to a balanced and healthful 16 ecology. The Constitution provides that “[t]he 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.”17 The Court further observed that provisions of Executive Order No. 192, series of 1987 (creating the Department of Environment and Natural Resources (DENR)),18 and the Administrative Code of 1987 declare the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the 19 country’s forest. Both laws, said the Court, set these objectives, 20 which in turn provide the basis of policy formulation. The Court also pointed out that decrees issued prior to the ratification of the 21 1987 Constitution, such as the Philippine Environmental Policy and 22 the Philippine Environment Code, already paid attention to the environmental rights of present and future generations.23 14 Id. 15 Id.

at 800–01.

16 Id.

at 804.

17

CONST. (1987), Art. II, § XVI, (Phil.).

18

Exec. Ord. No. 192 (1987) (Phil.). It provides, in part:

[Section. 3. Declaration of Policy]. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country’s forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country’s natural resources, not only for the present generation but for future generations as well. Id. § 3. 19

Exec. Ord. No. 292, bk. IV, tit. XIV, ch. 1, § 1 (1987) (Phil.).

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21

Pres. Dec. No. 1151 (1977) (Phil.).

22

Pres. Dec. No. 1152 (1977) (Phil.).

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After a reading of these laws, the Court concluded that the right to a balanced and healthful ecology is as clear as the DENR’s duty to protect and advance said right. 24 The Court found that a denial or violation of that right by the party who has the correlative duty or obligation to respect or protect the same gives rise to a cause of 25 action. The Supreme Court likewise disagreed with the trial court’s finding that the issue in this case involved a political question. It said: “Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-à-vis policies 26 already formulated and expressed in legislation.” The Court also pointed out that the 1987 Constitution expands judicial review to cover political questions. 27 The Court also said that the timber license agreements were not contracts that are protected by the non-impairment clause of the Constitution.28 Rather, they are licenses that could be validly withdrawn whenever dictated by public interest or public welfare. 29 A. Misreading Oposa In my view, whatever the Supreme Court may have said in Oposa about standing to sue or intergenerational equity was obiter dictum and not doctrinal. In an earlier Article I pointed out the following misconceptions regarding the Court’s opinion in Oposa:30 31 1. The timber license agreements were not cancelled. The Supreme Court set aside the order of the trial court granting the motion to dismiss and remanded the case for trial, stating that “[t]he petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license

24 Id.

at 808.

Citing jurisprudence, the Philippine Supreme Court defined a cause of action as “an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right.” Id. 25 Id.

26 Id.

at 809.

27 Id.

at 810.

28 Id.

at 812.

at 811; see CONST. (1987), Art. III, § X, (Phil.) (providing that “[n]o law impairing the obligation of contracts shall be passed”). 29 Id. 30

Gatmaytan, The Illusion, supra note 4.

31 Id.

at 466–68.


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agreements.” The petitioners, however, never pursued the case at the lower court. 2. The Supreme Court did not rule on the petitioners’ standing to sue. As I pointed out earlier, the Court resolved three issues: (1) whether the petitioners had a cause of action, (2) whether the issue was a political question, and (3) whether timber license agreements are contracts.33 As I have argued, everything else the Court said in 34 the case is obiter dictum. 3. The Supreme Court did not significantly loosen Philippine rules on standing. Even if standing to sue was an issue in Oposa, the rules on standing in the Philippines are relatively lenient. Standing 35 may be assumed when a citizen is asserting a right, and it may be waived if the issues raised are important enough. 36 Standing, in other words, is a technicality in the Philippines, not an insurmountable legal obstacle.37 4. Intergenerational equity as articulated in Oposa has no practical effect. If the children had invoked their own right to a balanced and healthful ecology, the Supreme Court would have decided the case in the same way. Neither the issues nor the Court’s 38 interpretation of the law would change. 5. Intergenerational equity is already law in the Philippines. There are already statues and decisions that recognize the right of 39 future generations. The Supreme Court added nothing by discussing intergenerational equity in the sense that laws already recognize the 40 concept. Oposa did not trigger a flood of litigation or lead to a discernable 41 improvement in the Philippine environment. At best, Oposa served as a signal that the Philippine Supreme Court was ready to enforce social rights that are found in the Constitution. The Supreme Court, however, is presently taking steps to distance itself from Oposa.

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Gatmaytan, The Illusion, supra note 4, at 461.

34 Id.

at 468–72.

35 Id.

at 472.

36 Id.

at 473.

37 Id.

at 472–74.

38 Id.

at 475–76.

39 Id.

at 476–80.

40 Id. 41 Id.

at 484.

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II AFTER O POSA

After Oposa, there was a string of Supreme Court decisions that 42 were decided heavily against the environment. The Philippines’ record in environmental litigation suddenly appeared tarnished. More recent decisions of the Court, though, seem to provide clear procedural remedies for environmental litigants. These cases depart from the colorful language of Oposa and adopt straightforward directions on how litigants should go about pursuing their interests. All three decisions point to remedies away from the courts. A. Henares v. Land Transportation Franchising and Regulatory Board In Henares v. Land Transportation Franchising and Regulatory Board, the petitioners asked the Supreme Court to order the Land Transportation Franchising and Regulatory Board and the Department of Transportation and Communications to require public utility 43 vehicles to use compressed natural gas as alternative fuel. Following the strategy of Oposa, the petitioners used statistics from various government agencies on vehicle ownership in the Philippines and the emission of air pollutants to “present a compelling case for judicial action against the bane of air pollution and related 44 environmental hazards.” The petitioners proposed the use of compressed natural gas—a natural gas comprised mostly of methane—which is considered the cleanest fossil fuel because it produces less pollution than coal and petroleum. 45 The petitioners cited their right to a balanced and healthful ecology under Section 16, Article II of the 1987 Constitution, Oposa v. Factoran , and Section 4 46 of the Philippine Clean Air Act of 1999. The Supreme Court addressed two questions in Henares: (1) whether the petitioners had legal personality to bring the petition, and (2) whether the Court should order the respondents to compel public 47 utility vehicles to use compressed natural gas as alternative fuel.

42

See Gatmaytan-Magno, Artificial Activism, supra note 6.

43 Henares v. Land Transp. Franchising & Regulatory Bd., G.R. No. 158290, 505 S.C.R.A. 104, 107 (Oct. 23, 2006) (Phil.). 44 Id. 45 Id.

at 109.

46 Id. 47 Id.

at 113.


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The Court ruled in favor of the petitioners’ standing (as in Oposa, though, the respondents did not actually challenge the petitioners’ standing to sue), saying that the petition focused on the fundamental legal right of petitioners to clean air: Undeniably, the right to clean air not only is an issue of paramount importance to petitioners for it concerns the air they breathe, but it is also impressed with public interest. The consequences of the counter-productive and retrogressive effects of a neglected environment due to emissions of motor vehicles immeasurably affect the well-being of petitioners. On these considerations, the 48 legal standing of the petitioners deserves recognition.

Nonetheless, the Supreme Court dismissed the petition, saying that mandamus can only compel performance of an act specifically enjoined by law as a duty. 49 There is, however, no law that mandates the respondents Land Transportation Franchising and Regulatory Board and Department of Transportation and Communications to 50 order owners of motor vehicles to use compressed natural gas. Recognizing the equality among the different branches of government, the Court said that mandamus “will not generally lie from one branch of government to a coordinate branch, for the 51 obvious reason that neither is inferior to the other.” The Court explained that under the separation of powers doctrine: The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by 52 themselves the environmental problems raised in this petition.

It appears, said the Court, that “the legislature should provide first the specific statutory remedy to the complex environmental problems bared by herein petitioners before any judicial recourse by mandamus is taken.”53 The Supreme Court’s decision in Henares to respect constitutional borders has serious implications for Oposa. Part of Oposa’s appeal

48 Id.

at 114.

49 Id.

at 117.

50 Id. 51 Id. 52 Id.

at 117–18.

53 Id.

at 118–19.

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was the idea that the Philippine Supreme Court signaled its willingness to step into the political thicket for the sake of the environment and to introduce novel ideas—albeit in dictum—into litigation. By recognizing an enforceable right among State policies, Oposa generated questions about whether litigants could go directly to the Supreme Court when the political branches of government are inert in their attempt to protect environmental rights. These questions have now been answered by the Supreme Court. The Court will not usurp the functions of Congress in environmental matters and will not so casually order a coequal branch of government 54 to perform acts that pertain to its sphere. The Supreme Court is now directing environmental activists to take their campaign to the political branches of government: the route to a balanced and healthful environment is through the enactment of laws. The petitioners in both Oposa and Henares presented ominous statistics and potential consequences of current government practices, but the Court was not moved in the latter case and still pointed to Congress for solutions. Henares qualified Oposa by pointing out that even if the Philippine Constitution creates a cause of action to protect the environment, and even if we assume that the Philippine Supreme Court did rule that litigants do have standing to sue for future generations, litigants still need to cite a specific law that can serve as a basis to order a change in government practices. Had the petitioners in Oposa pursued the case after it was remanded to the trial court, they would have eventually lost. There is no law that compels the Secretary of the Environment to stop processing applications for timber license agreements or cancel existing ones, just as there is no law that can compel the Secretary of Transportation to order the use of safer fuel alternatives. The following section analyzes the other avenue available to litigants who are seeking protection for their environmental rights: local government legislation. The Supreme Court has been remarkably supportive of local governments and community efforts to protect the environment, although this avenue seems underexploited by environmentalists.

54 Id.

at 117–18.


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B. Social Justice Society v. Atienza 1. The Original Decision Social Justice Society v. Atienza involved Ordinance No. 8027, which reclassified a part of the city of Manila from industrial to commercial and directed the owners and operators of businesses 55 affected to cease operating their businesses within six months. Among the businesses affected were Caltex (Philippines), Inc.; Petron 56 Corporation; and Pilipinas Shell Petroleum Corporation. Manila Mayor Jose Atienza did not implement the ordinance because Manila and the Department of Energy entered into a memorandum of understanding with the oil companies where the latter agreed to scale 57 down their operations instead. Petitioners filed an action for mandamus to ask the Supreme Court to compel the mayor to enforce the ordinance and to order the immediate removal of the oil terminals.58 The Supreme Court granted the petition, saying that the Local Government Code imposes upon the mayor the duty to “enforce all laws and ordinances relative to the governance of the city.” 59 As the chief executive of the city, it is his duty to enforce Ordinance No. 8027 as long as it has not been repealed or annulled by the courts. 60 “He has no other choice. It is his ministerial duty to do so.” The Supreme Court pointed out that even if the terms of the memorandum of understanding were inconsistent with Ordinance No. 8027, the local legislative council resolutions ratified it and gave it 61 effect only until April 30, 2003. After such date, there was no reason to delay the removal of the oil depots. The Court concluded that “at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.”62 Atienza was a straightforward ruling that compels local chief executives to abide by directives of the local legislative councils. The 55 Social Justice Society v. Atienza, G.R. No. 156052, 517 S.C.R.A. 657, 660 (Mar. 7, 2007), reconsidered , 545 S.C.R.A. 92 (Feb. 13, 2008) (Phil.). 56 Id. 57 Id.

at 661–62.

58 Id.

at 663.

59 Id.

at 665.

60 Id.

at 666.

61 Id. 62 Id.

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implications of the ruling are important for advocates of environmental rights. Local governments are now clearly an important arena for environmental advocacy and policy formulation. A legislative agenda at this level can guarantee some measure of protection even when the local chief executives become too friendly with polluters. The case, however, did not end there. The Department of Energy filed a motion for reconsideration and the oil companies affected by Ordinance No. 8027 filed motions to intervene. 63 In the resolution of these motions the Supreme Court promulgated a virtual treatise on local government law and local government autonomy that should be studied by advocates for the environment. 2. The Second Ruling

Chevron and Royal Dutch Shell filed motions to intervene in Atienza. In their intervention, the companies argued that there was a pending case with the Manila Regional Trial Court that had enjoined implementation of Ordinance No. 8027. 64 Petron filed its own intervention questioning the validity of Ordinance No. 8027 and likewise sought an injunction against its enforcement.65 In the meantime, the city council of Manila had enacted Ordinance No. 8119, the Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006, which was approved by the mayor on June 16, 66 2006. The oil companies filed a complaint in the Manila courts asking for the nullification of Ordinance No. 8119. The Regional Trial Court, in turn, issued a temporary restraining order enjoining the 67 City of Manila from enforcing the new ordinance. In the case before the Supreme Court, the following were among the issues submitted for resolution: (1) Whether the Supreme Court’s March 7, 2007 decision could be implemented because:

Social Justice Society v. Atienza, G.R. No. 156052, 545 S.C.R.A. 92, 99 (Feb. 13, 2008) (Phil.). 63

64 Id.

at 103.

65 Id.

at 104.

66 Ordinance No. 8119 reclassified the area covering the Pandacan Terminals to “High Density Residential/Mixed Use Zone (R-3/MXD)” whereas Ordinance No. 8027 reclassified the same area from Industrial II to Commercial I. Moreover, Ordinance No. 8119 provides for a phase-out of seven years for nonconforming uses and buildings. Id. at 123–28. 67 Id.


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(a) The enforcement of Ordinance No. 8027 was enjoined by Manila courts, (b) Ordinance No. 8027 was repealed by Ordinance No. 8119, and (c) Ordinance No. 8027 is unconstitutional. (2) Whether the implementation of Ordinance No. 8027 would encroach upon the Department of Energy’s powers and functions 68 involving energy resources.

a. The injunctions against the implementation of Ordinance No. 8027 were improper.

The Supreme Court held that the injunctions issued by the lower 69 courts were unlawful. The Court explained that as a general rule, ordinances are presumed valid and as such cannot be restrained by injunctions.70 The exception is that when the validity of the ordinance is questioned, the courts may issue an injunction only when “the petitioner . . . has made out a case of unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of validity, in addition to a showing of a clear legal right to the remedy 71 sought.” The Supreme Court observed that the oil companies had not met the standards for the issuance of an injunction. 72 The mere allegation that an ordinance was unconstitutional or invalid was not 73 sufficient reason to justify an injunction. b. Ordinance No. 8119 did not repeal Ordinance No. 8027.

The Court next declared that Ordinance No. 8119 did not impliedly 74 repeal Ordinance No. 8027. The oil companies argued that the provisions of the ordinances were so “irreconcilably contradictory” that Ordinance No. 8119 should be construed as an implied repeal of Ordinance No. 8027.75

68 Id.

at 105.

69 Id.

at 118.

70 Id.

at 115.

71 Id.

at 115–16.

72 Id.

at 117.

73 Id. 74 Id.

at 123.

75 Id.

at 123–29.

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The Court disagreed, saying that while it is true that both ordinances relate to the classification of the land where the oil depot is located, every effort must be made to reconcile the ordinances, unless the later law was clearly meant to repeal the earlier 76 enactment. The Court explained that a later general law does not repeal a prior special law on the same subject unless it clearly appears that the legislature intended to modify or repeal the earlier special law.77 The Supreme Court regarded Ordinance No. 8027 as a special law since it dealt with a certain area described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 was considered a general 78 law as it covered the entire city of Manila. c. Ordinance No. 8027 is constitutional and valid.

Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, the Court proceeded to assess its legality and constitutionality.79 (i) Manila had the power to enact Ordinance No. 8027.

For an ordinance to be valid it must be within the powers of the local government unit to enact. The Supreme Court pointed out that there was a sufficient legal basis for the enactment of Ordinance No. 8027.80 This ordinance was passed by the city council of Manila in the exercise of its police power, which is delegated to local 81 governments, under Section 16 of the Local Government Code.

76 Id. at 130–31. According to the Court, there is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119 designated it as a “Planned Unit Development/Overlay Zone (O-PUD).” Both ordinances sought to change the classification from industrial to commercial (under Ordinance No. 8027) or mixed residential/commercial (under Ordinance No. 8119). Id. 77 Id.

at 132.

at 133. The oil companies also argued that even if Ordinance No. 8027 is a special law, the existence of a repealing clause in Ordinance No. 8119 shows intent on the part of the city council to repeal the earlier ordinance. But the Supreme Court explained that the official record of the discussions in the city council indicated the intent to preserve the provisions of Ordinance No. 8027. Id. at 133–34. 78 Id.

79 Id.

at 135.

80 Id.

at 136–37.

81 Id.

at 136.

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Other provisions of the Local Government Code, as well as the city 83 charter of Manila, add other bases for the exercise of this power. (ii) Ordinance No. 8027 meets substantive requirements for validity.

Under Philippine law, an ordinance should conform to the following substantive requirements: 84 1. It must not contravene statutes and the Constitution; 2. It must not be unfair or oppressive;85 3. It must not be discriminatory;86

Section 458(a)(2)(viii) of the Local Government Code specifically empowers city councils to “[r]eclassify land within the jurisdiction of the city.” Id. at 137. 82

83 This power was also provided for in Republic Act No. 409 (also known as the Revised Charter of the City of Manila):

[Section 18. Legislative powers].—The [City Council] shall have the following legislative powers: .... (kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter . . . . An Act to Revise the Charter of the City of Manila, and for Other Purposes, Rep. Act No. 409 (1949) (Phil.). 84 Ordinance No. 8027 was enacted “for the purpose of promoting sound urban planning, ensuring health, public safety and general welfare” of the residents of Manila. The city council adopted this measure to protect residents from possible terrorist attacks on the Pandacan Terminals. The ordinance was intended to safeguard the rights to life, security, and safety of all the inhabitants of Manila and not just of a particular class. The Court pointed out that in the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government. The power to establish zones for industrial, commercial, and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality. Atienza, 545 S.C.R.A. at 138–39. 85 The oil companies argued that Ordinance No. 8027 is unfair and oppressive because it prohibits them from conducting operations in the City of Manila. This is not accurate because the ordinance does not prohibit the oil companies from operating in other areas in Manila. The city council merely exercised its power to regulate businesses and industries. The oil companies also claimed that the ordinance is unfair and oppressive because they have invested billions of pesos in the depot and its closure will result in huge losses in income and also increase costs in constructing new facilities. The Court also brushed aside this argument and said that the ordinance is an exercise of police power and is not eminent domain. Compensation is necessary only when the state’s power of eminent domain is exercised. A restriction imposed to protect lives, public health, and safety from danger is not a taking; it is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public. Id. at 141–44.

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It must not prohibit trade; It must be consistent with public policy;88 and It must not be unreasonable.89

d. Ordinance No. 8027 is not inconsistent with Republic Act No. 7638 and Republic Act No. 8479.

The oil companies and the Department of Energy argued that Ordinance No. 8027 is unconstitutional because it contravenes Republic Act No. 7638 (Department of Energy Act of 1992) and Republic Act No. 8479 (Downstream Oil Industry Deregulation Law 90 of 1998). They argued that the petroleum products contained in the Pandacan Terminals are major and critical energy resources, and that their administration, storage, distribution, and transport are of national interest and fall under Department of Energy’s primary and exclusive jurisdiction.91 They then claimed that the terminals are necessary for the delivery of immediate and adequate supply of oil to its recipients 92 in the most economical way. Ordinance No. 8027, in their view, frustrated the State policy of ensuring a continuous, adequate, and 93 economic supply of energy expressed in Republic Act No. 7638. They also argued that the ordinance undermines the determination made by the Department of Energy that the terminals’ operations should be merely scaled down and not discontinued.94 The Supreme Court disagreed. It pointed out that nothing in Republic Act No. 7638 or Republic Act No. 8749 prohibits the City of Manila from enacting ordinances in the exercise of its police 95 power.

86 The oil companies argued that the ordinance singled out the Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and residences that do not comply with the National Building Code, Fire Code, and Health and Sanitation Code. The Court, however, found that the ordinance adopted a reasonable classification explaining that, unlike the depot, the surrounding community is not a potential terrorist target. In addition, the Court found that the ordinance also applies to all businesses and industries in the area it delineated. Id. at 144–45. 87 Id.

at 135.

88 Id. 89 Id. 90 Id.

at 145.

91 Id.

at 146.

92 Id. 93 Id. 94 Id. 95 Id.

at 148.


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The Supreme Court took this opportunity to stress the significance of the principle of local autonomy in the Philippine Constitution. Article II, Section 25 of the Constitution provides, “The State shall ensure the autonomy of local governments.” 96 Article X of the Constitution was devoted to guaranteeing and promoting the 97 autonomy of local government units. Apart from the constitutional directives, Congress had enacted the Local Government Code to ensure the autonomy of local governments as mandated by the Constitution.98 The Supreme Court explained that the laws allegedly contradicted by Ordinance No. 8027 gave the Department of Energy general powers that can be exercised without constricting local government units: When these ambiguous powers are pitted against the unequivocal power of the [local government units] to enact police power and zoning ordinances for the general welfare of its constituents, it is not difficult to rule in favor of the latter. Considering that the powers of the [Department of Energy] regarding the Pandacan Terminals are not categorical, the doubt must be resolved in favor 99 of the City of Manila.

The Supreme Court continued by saying that to “ensure genuine and meaningful local autonomy is not to force an interpretation that negates powers explicitly granted to local governments. To rule against the power of [local government units] to reclassify areas within their jurisdiction will subvert the principle of local autonomy guaranteed by the Constitution.”100 e. The Department of Energy cannot exercise the power of control over local government units.

In addition, the Court said that Section 4 of Article X of the Constitution confines the President’s power over local government units to one of general supervision: “The President of the Philippines 101 shall exercise general supervision over local governments.”

96

CONST. (1987), Art. II, § 25 (Phil.).

97 Atienza,

545 S.C.R.A. at 148.

98 Id.

at 149.

99 Id.

at 151.

100 Id. 101 Id.

at 152.

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Consequently, the President or her alter egos cannot exercise the power of control over local officials. Supervision is the power of oversight over an inferior body and does not include any restraining authority over such body. 102 The Department of Energy acted unconstitutionally, in the Court’s view, when it attempted to set aside 103 an ordinance enacted by local officials. The President and her department heads cannot interfere with the activities of local governments, as long as the latter act within the scope of their 104 authority. The Supreme Court ended by saying that in the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property because “life is irreplaceable, property is 105 not.” When the state or local government unit’s exercise of police power clashes with a few individuals’ right to property, the former should prevail.106 C. Metropolitan Manila Development Authority v. Concerned Citizens of Manila Bay On January 29, 1999, a group calling itself The Concerned Residents of Manila Bay filed a complaint before the Regional Trial Court against several government agencies for the cleanup, rehabilitation, and protection of Manila Bay. 107 The complaint alleged that the water quality of Manila Bay had fallen significantly below the allowable standards set by law, specifically Presidential 108 Decree No. 1152, also known as the Environment Code. The residents asked that the agencies be ordered to clean Manila Bay and submit to the trial court a concrete plan on how they will carry out 109 this order. The trial court ordered the agencies to clean up and rehabilitate 110 Manila Bay and its decision was sustained by the Court of Appeals. The government agencies then appealed the case to the Supreme 102 Id. 103 Id.

at 152–53.

104 Id.

at 153.

105 Id.

at 157.

106 Id.

Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G.R. Nos. 171947–48, 574 S.C.R.A. 661 (Dec. 18, 2008) (Phil.). 107

108 Id. 109 Id.

at 667.

110 Id.

at 667–69.


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111

Court. The first issue before the Court was whether Sections 17 and 20 of the Environment Code (Presidential Decree No. 1152) encompass the cleanup of water pollution in general, or just specific pollution incidents. The second issue was whether the Metropolitan Manila Development Authority (MMDA) can be compelled by mandamus to clean up and rehabilitate Manila Bay. The Supreme 112 Court ruled in favor of the residents on both issues. The Court first discussed the scope of Presidential Decree No. 113 1152. The agencies contended that Sections 17 and 20 of the Environment Code concern themselves only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general.114 In their view, these provisions should be read alongside Sections 62(g) and (h), which define the terms “cleanup operations” and “accidental spills” as follows: g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in water to restore it to pre spill condition. h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from accidents such as collisions and 115 groundings.

The agencies argued that Sections 17 and 20 merely direct the government agencies to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the 116 body of water concerned. They claimed that the application of 111 Id.

at 669.

112 Id.

at 671, 686.

113

The pertinent sections of the law provide as follows:

[Section 17. Upgrading of Water Quality]. Where the quality of water has deteriorated to a degree where its state will adversely affect its best usage, the government agencies concerned shall take such measures as may be necessary to upgrade the quality of such water to meet the prescribed water quality standards. .... [Section 20. Clean-up Operations]. It shall be the responsibility of the polluter to contain, remove and clean-up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and clean-up operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution. Pres. Dec. No. 1152, §§ 17, 20 (1977) (Phil.). 114 Metro. 115 Id.;

Manila Dev. Auth., 574 S.C.R.A. at 685.

Pres. Dec. No. 1152, § 62(g)–(h) (1977).

116 Metro.

Manila Dev. Auth., 574 S.C.R.A. at 685.

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Section 20 is limited only to “water pollution incidents,” which presupposes the occurrence of “specific, isolated pollution events requiring the corresponding containment, removal, and cleaning operations.”117 They argued that Section 62(g) requires “cleanup operations” to restore the body of water to pre-spill condition, which means that there must have been a specific incident of either intentional or accidental spillage of oil or other hazardous substances, as mentioned in Section 62(h). 118 The Supreme Court disagreed. The Court explained that Section 17 does not state that the government agencies concerned ought to confine themselves to the containment, removal, and cleaning 119 operations when a specific pollution incident occurs. Rather, it requires them to act even in the absence of a specific pollution incident, as long as water quality “has deteriorated to a degree where its state will adversely affect its best usage.” 120 This section commands concerned government agencies, when appropriate, “to take such measures as may be necessary to meet the prescribed water 121 quality standards.” The Court added that Section 20 applies to situations where the pollution is caused by polluters who fail to clean up the mess they left 122 behind. In such a case, the government agencies shall undertake the cleanup work and the expenses shall be charged against the 123 polluters’ account. Section 17 comes into play and the specific duties of the agencies to clean up come in “even if there are no 124 pollution incidents staring at them.” The Court then quoted with approval the Court of Appeals’ interpretation of the design of the Environment Code: “PD 1152 aims to introduce a comprehensive program of environmental protection and management. This is better served by making Secs. 17 & 20 of general application rather than 125 limiting them to specific pollution incidents.” On the second issue, the Court pointed out that the MMDA’s duty to clean Manila Bay is spelled out in Section 3(c) of Republic Act No. 117 Id. 118 Id. 119 Id.

at 686.

120 Id. 121 Id. 122 Id. 123 Id. 124 Id.

at 686–87.

125 Id.

at 687.


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126

7924, the law creating the MMDA. This section defines and delineates the scope of the MMDA’s waste disposal services to include: Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs 127 intended to reduce, reuse and recycle solid waste.

The Court went on to add: The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act [Republic Act No. 9003] which prescribes the minimum criteria for the establishment of sanitary landfills and Section 42 which provides the minimum operating requirements that each site operator shall maintain in the operation 128 of a sanitary landfill.

And finished by saying: Complementing Sec. 41 are Secs. 36 and 37 of [Republic Act No. 9003], enjoining the MMDA and local government units, among others, after the effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing, 129 five years after such effectivity, the use of controlled dumps.

The MMDA’s duty in the area of solid waste disposal, said the Court, is set forth not only in the Environment Code and the 130 Ecological Solid Waste Management Act, but in its charter as well. This duty of putting up a proper waste disposal system is not discretionary because a discretionary duty is one that “allows a person 131 to exercise judgment and choose to perform or not to perform.” The other government agencies’ respective charters and pertinent laws yield the same conclusion. These agencies are enjoined to perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. 132

126 Id.

at 672.

127 Id. 128 Id. 129 Id. 130 Id. 131 Id.

at 672–73 (quoting BLACK’S LAW DICTIONARY 712 (7th ed. 1999)).

132 Id.

at 673–83.

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[Vol. 12, 1 133

They are precluded from choosing not to perform these duties. All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to what are the obligations and mandate of each agency/petitioner under the law. III COURTS AND THE ENFORCEMENT OF ENVIRONMENTAL RIGHTS

A. The Indian Experience Henares stands in contrast to a similar, albeit more successful, attempt to compel the use of compressed natural gas in India. Unlike the Philippine Supreme Court’s decision in Henares, the Indian 134 Supreme Court in M.C. Mehta v. Union of India issued a series of orders to address urban vehicular pollution. 135 The Court ordered restrictions on the use of commercial vehicles that were fifteen years or older, and restrictions on the operation of goods vehicles during the 136 daytime. This was followed by an order to convert a city bus fleet in Delhi to use compressed natural gas. 137 The government was granted two deadline extensions to comply with the Court’s order, but 138 failed to convert all the buses by January 31, 2002. The government cited shortages of compressed natural gas and the 139 possible disruption to bus service. In response, the Court imposed a daily fine of 500 rupees for every bus that used diesel fuel. 140 The Court also removed around 1500 diesel buses from Delhi’s streets. 141 The difference in the way these two courts decided a similar issue should not surprise students of court behavior. Courts in India are proactive in creating jurisprudence that secures a clean and healthy environment for their citizens, in part because of the lack of 133 Id. 134

at 673.

M.C. Mehta v. Union of India, (1998) 6 S.C.C. 63.

Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability , 19 J. ENVTL. L. 293, 298–99 (2007). 135

136 Shubhankar Dam, Lawmaking Beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analyzing the Legitimacy of the Nature of Judicial Lawmaking in India’s Constitutional Dynamic), 13 TUL. J. INT’L & COMP. L. 109, 118 (2005). 137 Id.

Scott LaFranchi, Note, Surveying the Precautionary Principle’s Ongoing Global Development: The Evolution of an Emergent Environmental Management Tool, 32 B.C. ENVTL. AFF. L. REV. 679, 692 (2005). 138

139 Id. 140 Id. 141 Id.


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commitment of the other branches of government to pursue the same 142 goal. The Supreme Court of India has expanded what is basically a due process clause under Article 21 of the Constitution to include a fundamental right to a clean and hygienic environment.143 The Indian Supreme Court’s ruling generated mixed reactions. Some applauded the decision because compressed natural gas is safer than even the safest forms of diesel. 144 They also point out that the 145 public health benefits of the decision far outweigh its costs. Judicial oversight of executive action has led to improvements in 146 solid waste management and air quality in Delhi. This oversight also led to “improved governance and delivery of public services, and enhanced accountability of public servants.” 147 Litigation has become a popular way to direct the executive to perform its duties. On the other hand, these cases have not institutionalized either governance-related reform or the delivery of 148 public services. The Court’s procedures are not participatory and have led to solutions that were not always fair to all the 149 stakeholders. Others call the Court’s solutions ineffective and 150 unsustainable. Not everyone is happy about the Indian Supreme Court’s approach to environmental issues. One article claims: [T]he Indian Supreme Court has undoubtedly rewritten the rules of functional legitimacy in the realm of constitutional adjudication. It has skillfully reinvented itself as a constitutional alchemist, transforming all problems of life into problems of law—in fact into problems of constitutional law. With neither the legislature nor the executive in any mood for an ugly confrontation, the Supreme

142 See Barry E. Hill et al., Human Rights and the Environment: A Synopsis and Some Predictions, 16 GEO. INT’L ENVTL. L. REV. 359, 382 (2004); Jennifer M. Gleason & Bern A. Johnson, Environmental Law Across Borders, 10 J. E NVTL. L. & LITIG. 67, 79 (1995). 143 J. Mijin Cha, A Critical Examination of the Environmental Jurisprudence of the Courts of India, 10 ALB. L. ENVTL. OUTLOOK J. 197, 203 (2005).

See, e.g., Armin Rosencranz & Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power , 28 COLUM. J. ENVTL. L. 223, 224–25, 252 (2003) 144

145 Id. 146

at 242.

Rajamani, supra note 135, at 319.

147 Id. 148 Id. 149 Id. 150 Id.

at 320.

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Court has quietly established itself as the ‘super-cop’ under the 151 Indian Constitution.

The harshest criticisms against the Supreme Court of India implicate the separation of powers doctrine. Critics claim that “the Court seems to be usurping the authority of the existing pollution 152 control authorities to fulfill their duties independently.” The Indian Supreme Court hears political, social, and economic questions regularly and is viewed as a forum “to voice the grievances of the 153 community.” The problem, others claim, is that a court is not equipped with the skills and the competence to discharge functions of other branches of government.154 B. The Theoretical Bases of Judicial Activism The supreme courts of India and the Philippines have taken their places in the spectrum of possible courses of action for courts in the enforcement of social rights. This is a sensitive area and, to be sure, there are arguments against the role of courts in the enforcement of social rights. 155 Two arguments come out of the “pluralist” view of democracy.156 The first maintains that if judges want to respect democracy, they have to recognize the primacy of the constitution 157 they are enforcing. If the constitution is hostile to social rights, judges should refuse to enforce these rights even if they are 158 incorporated in legislation. The second view considers the role of

151 Shubhankar Dam & Vivek Tewary, Polluting Environment, Polluting Constitution: Is a ‘Polluted’ Constitution Worse than a Polluted Environment?, 17 J. ENVTL. L. 383, 383 (2005). 152

Rosencranz & Jackson, supra note 144, at 224–25.

Rajamani, supra note 135, at 316 (quoting Dr. P. Nalla Thampy v. Union of India (1983) 4 S.C.C. 598, 603). 153

See S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POL’Y 29, 88–89 (2001); Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, 37 A M. J. COMP. L. 495 (1989) (discussing the history of public interest litigation in India). 154

155 See Roberto Gargarella, Theories of Democracy, the Judiciary and Social Rights , in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR? 13 (Roberto Gargarella, Pilar Domingo & Theunis Roux eds., 2006). 156 A “pluralist” view of democracy is “one that is mainly directed at ensuring political stability and which is hostile to popular intervention in politics. It is also particularly concerned with the protection of certain individual rights, mainly those related to personal security and private property, through a system of checks and balances.” Id. at 14. 157 Id. 158 Id.

at 13–14.


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courts under a participatory democracy and maintains that if judges want to respect democracy, they should not pre-empt democratic 159 deliberation on crucial issues. When the legislature refuses to enact social rights, judges should resist the temptation to legislate. A third view is based on the deliberative conception of democracy.160 Roberto Gargarella, an advocate for this third view, argues that under a deliberative democracy, courts could adopt a variety of responses: [T]hey could require the political branches to give more explicit reasons as to why they have excluded or disregarded certain demands, they could ask them to rethink or re-elaborate their reasoning, or they could order them to provide solutions to certain unresolved problems. Judges could define guidelines that authorities should follow, rather than direct orders dictating particular solutions. They could even propose the adoption of certain particular outcomes, without imposing them on the legislature, who could then adopt these suggestions or try different alternatives. In sum, through this dialogue between the different branches, and between them and the people, the deliberative process would be enriched and the quest for impartiality improved. In the end, the search for impartiality is a collective enterprise where we 161 are all involved, from our different public or private positions.

The Indian Supreme Court has placed itself outside these options and assumed legislative and executive functions on top of their own duties. It is no wonder then that the Court’s critics are many and loud. The Philippine Supreme Court for its part sees its role under a participatory democracy and has resisted the temptation to act outside the boundaries of its constitutional duties despite the failure of the executive branch to act forcefully on environmental issues plaguing the country. As I said, however, this course of action may serve the Philippines better in the long run. The assumption of executive and legislative functions by courts undermines constitutionalism and concentrates power in a single branch of government. The potential consequences of this option should be obvious to students of constitutionalism and the rule of law. The Philippines had just extricated itself from authoritarianism and has yet to consolidate its

159 Id.

at 14.

160 Gargarella describes “deliberative democracy” as having two essential features. “First . . . this view of democracy requires public decisions to be adopted after an ample process of collective discussion. Second . . . the deliberative view requires, in principle, the participation of all those potentially affected by the decision.” Id. at 27. 161 Id.

at 29 (footnote omitted).

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democracy. A willful violation of the tenets of liberal constitutionalism would bode ill for the fledgling democracy. This is not to say that courts have no role in enforcing social rights. Georgetown University’s Mark Tushnet suggests that the court’s role can be determined by how these rights are placed in the 162 Constitution. A constitution can enumerate social welfare rights 163 but exempt them from judicial enforcement. Constitutions can recognize judicially enforceable social welfare rights, but give legislatures an extremely broad range of discretion about providing those rights (or, equivalently, direct that courts defer substantially to 164 legislative judgments). Finally, social welfare rights can be strong ones in the sense that courts will enforce them fully without giving substantial deference to legislative judgments whenever they conclude that the legislature has failed to provide what the constitution requires. 165 The principles and State policies enumerated in Article II of the Philippine Constitution, which include the right to a balanced and healthful ecology, are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.” 166 By design, therefore, the Philippine Supreme Court can recognize rights, but can neither legislate nor administer them. It is for this reason that Henares represents a solid step towards constitutionalism and should not be regarded as a setback for the environment. IV NEW DIRECTIONS IN ENVIRONMENTAL LAW AND LITIGATION

The impact of these cases on Oposa seems lost on some environmental activists in the Philippines. In December 2007, for example, a case seeking the termination of test drillings being carried out by the Japan Petroleum Exploration Company in the southern part

162 Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review , 82 T EX. L. REV. 1895, 1898–909 (2004). 163 Id.

at 1898.

164 Id.

at 1902.

165 Id.

at 1906.

Tañada v. Angara, G.R. No. 118295, 272 S.C.R.A. 18 (May 2, 1997) (Phil.) (quoting Kilosbayan, Inc. v. Morato, G.R. No. 118910, 246 S.C.R.A. 540, 564 (July 17, 1995) (Phil.)). 166

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of the Philippines was filed with the Supreme Court. This case, citing Oposa, was filed on behalf of whales, dolphins, and other resident mammals “whose habitat has been disturbed by underwater blasting and drilling.” 168 The obsession with standing to sue as exemplified in this case is ultimately useless. If we suppose that the Philippine Supreme Court decides to recognize the animals’ standing to sue, would it stop the exploration? Henares suggests it would not. Not unless the petitioners can point to some law, domestic or international, that may 169 serve as a basis for the injunction that they are asking for. If the petitioners do find such a law, would it matter that wildlife were included as parties to the case? It would not—unless of course the law was enacted to give flora and fauna exclusive rights to sue in the event that the law is violated. The Supreme Court ruled in Oposa that the right to a balanced and healthful ecology in the Constitution carries a duty to refrain from impairing the environment. The violation of this right gives rise to a cause of action. A State policy is usually not enforceable in 170 Oposa Philippine law without an enabling statute from Congress. is, in only this instance, significant. It has carved out an exception to the rule that a State policy can be enforced by courts. Nevertheless, that ruling seems useless today. If litigants, as required by Henares, do find a law that can be cited as a basis for enjoining drilling operations, then they would logically have a cause of action to bring suit if there is a violation of that law. They would then have a statutory basis for their cause of action and there would be no need for a constitutional one. Henares has, therefore, eliminated the single contribution to environmental litigation that Oposa has provided. I think that the confusion regarding what the Supreme Court said in Oposa has derailed environmental litigation in the Philippines. There is a persistent attempt to read Oposa as a case recognizing “standing to sue” as if somehow this would help solve environmental problems. Hopefully Henares will put a stop to this quest.

Pinoy Dolphins vs. Japan Firm, CEBU DAILY NEWS, Dec. 19, 2007, http://globalnation.inquirer.net/cebudailynews/news/view_article.php?article_id=107765. 167

168 Id. 169 Henares v. Land Transp. Franchising & Regulatory Bd., G.R. No. 158290, 505 S.C.R.A. 104, 118–19 (Oct. 23, 2006) (Phil.). 170

Minors Oposa, supra note 1, at 816–18.

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To be clear, the door to environmental protection is not closed. Social Justice Society v. Atienza is a robust defense of the power of local governments to enact legislation in its own interests. It is a decision that spells out the limits of national government supervision of local governments under the regime of local autonomy that is recognized and protected by the Constitution. While the decision involved the relocation of oil depots (to deprive terrorists of a tempting target), the Supreme Court has applied the same principles in earlier cases that do deal directly with the protection of local 171 marine life. MMDA also points to government agencies that can be compelled to act to protect the environment. Atienza deserves the attention of environmental advocates. It shows that an engaged and responsible citizenry can elect local officials who are attuned to the needs of the environment, and citizens can compel action on the part of those who refuse to act in support of this cause. Others might point out that the recourse to judicial intervention is taken precisely because there is insufficient action on the part of the political branches of government. They sue because they want courts to pick up the slack when there is no action from either Congress or the President. Inaction on the part of elected officials, however, should be remedied by replacing them, not by altering the basic structure of government and investing courts with executive and legislative power. Courts should not be required to perform what is the ultimate task of the voter. Moreover, MMDA clearly recognizes the duty of government agencies to protect the environment. 172 They can be compelled by courts to perform their duties if there is inaction on their part. Henares has made it clear that the Philippine Supreme Court will no longer lead the enforcement of environmental rights. The environmental movement would do well to heed the Court’s dedication to constitutionalism and channel its resources accordingly.

See Tano v. Socrates, G.R. No. 110249, 278 S.C.R.A. 154 (Aug. 21, 1997) (Phil.). In this case the Philippine Supreme Court upheld the power of the local government units to enact laws to protect the environment pursuant to the general welfare clause of the Local Government Code of 1991. Oposa was not even necessary in that case, because there were sufficient legal bases for the challenged ordinances under the Local Government Code. The Court mentioned Oposa only to point out that there is a State policy on the protection of the environment. Id. 171

Metro. Manila Dev. Auth. v. Concerned Residents of Manila Bay, G. R. Nos. 171947–48, 574 S.C.R.A. 661 (Dec. 18, 2008) (Phil.). 172

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CONCLUSION

Over the years Oposa has lost its eminence and even the Philippine Supreme Court that once enjoyed international acclaim for supposedly embedding the concept of intergenerational equity in jurisprudence has distanced itself from that case. Today it is clear that the Supreme Court will defer to Congress on environmental problems. In many ways, this paradigm shift should be a welcome development. Henares is a tribute to constitutionalism that will benefit the Philippines in the long run. Oposa has distracted environmentalists from pursuing a viable legal approach to environmental protection. For years environmentalists have ignored the potential for local governments and government agencies to address many environmental problems. With Oposa on the sidelines, environmental activists have clear remedies they can pursue—all of which are far away from courts. EPILOGUE

The oil firms in Social Justice Society v. Atienza filed a second motion for reconsideration, which the Supreme Court denied on April 173 28, 2008. A month later, however, the new mayor of Manila, Alfredo Lim, signed Ordinance No. 7177 amending Ordinance No. 8027 by rescinding the legal basis for the removal of the oil depots. 174 The mayor said he signed the ordinance because the removal of the depots could lead to loss of income, impair the delivery of health and 175 education services, and weaken investor confidence in the city. Some Manila residents have asked the Supreme Court to void the new ordinance alleging that the city government disregarded the 176 welfare of its people when it was enacted. At the same time, civil society groups are preparing to file a petition with the Commission on Elections for the repeal of Ordinance No. 8187 through an initiative— 177 direct legislation by the residents of Manila.

173 Ira P. Pedrasa, High Court Junks Oil Depot Plea, B USINESSWORLD, May 8, 2009, at S1/1.

Louella D. Desiderio, Oil Firms, Other Industries Get to Stay in Manila , BUSINESSWORLD, May 29, 2009, at S1/1. 174

175 Id. 176 Ira P. Pedrasa, Appeal Filed to Quash Law Allowing Stay of Oil Depot , BUSINESSWORLD, June 2, 2009, at S1/11.

Louella D. Desiderio, Petition vs Depot Ordinance Prepared , BUSINESSWORLD , July 16, 2009, at S1/12. 177

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