Writ of Kalikasan and the environment

"Many strongly advocate the constitutional right to a balanced and healthful ecology, whether individually or collectively."


As a grade school student in the late 70s being driven across Jones Bridge to get to school, I remember Pasig River being dotted with water lilies, albeit with some stench. Its condition deteriorated in the 80s, with black water and a noticeable lack of flora. Being the communal waste bin of both the common folk and big establishments, the future of the river seemed bleaker and murkier than its water.   

Together with the rehabilitation of Pasig River in 1989 was a growing awareness in maintaining a balanced and healthful ecology, as mandated by the 1987 Philippine Constitution. Several laws were passed, such as the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990; the Philippine Mining Act of 1995; the Philippine Fisheries Code of 1998; the Philippine Clean Air Act of 1999; the Ecological Solid Waste Management Act of 2000; and the Philippine Clean Water Act of 2004, among others.

Because of the numerous substantive laws, there was a need to provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements (Section 3, Rule 1, Part 1, Rules of Procedure for Environmental Cases [RPEC]). This led the Supreme Court to issue the Rules of Procedure for Environmental Cases which seek “[t]o introduce and adopt innovations and best practices to ensure the effective enforcement of remedies and redress for violation of environmental laws.”

It can be said that the determination of the real parties in interest in civil actions involving enforcement or violation of environmental laws was deeply rooted in the case of Oposa v. Factoran (G.R. No. 101083, July 30, 1993).  The petitioners/plaintiffs in the Oposa Case “[were] all minors duly represented and joined by their respective parents” together with the “additional plaintiff, the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation.” Their personality to sue on behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.

The case was filed for themselves and others who are equally concerned about the preservation of the said resources but are "so numerous that it is impracticable to bring them all before the Court." The minors further assert that they "represent their generation as well as generations yet unborn" (Oposa v. Factoran, G.R. No. 101083, July 30, 1993). As important as the party filing the action is the ascertainment of whether there is a cause of action. The Supreme Court held that the “balanced and healthful ecology is as clear as the DENR's duty… to protect and advance the said right” (Oposa v. Factoran, G.R. No. 101083, July 30, 1993).

Against this jurisprudential backdrop, the concept of the citizen’s suit was undoubtedly patterned from the Oposa case when it defined it as an action to enforce rights or obligations under environmental laws by any Filipino citizen in representation of others, including minors or generations yet unborn. It also said that upon the filing of a citizen’s suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for (Section 5,  Rule 2, Part II,  RPEC).

Just like other civil cases the parties may settle the dispute. At the pre-trial conference, the court shall inquire from the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel to the Philippine Mediation Center (PMC) unit for purposes of mediation. The judge shall exert his best efforts to persuade the parties to arrive at a settlement, and he may issue a consent decree approving the agreement between the parties (Sections 3 and 5, Rule 3, Part II, RPEC).

The defendant in a legal action filed against him to harass, vex, exert undue pressure or stifle the enforcement of environmental laws or protection of the environmental rights may raise Strategic Law Suit Against Public Participation (SLAPP) as a defense in the Answer. The defendant interposing SLAPP as a defense in the Answer shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney’s fees and costs of suit (Sections 1 and 2, Rule 6, Part II, RPEC).

The Writ of Kalikasan was eventually introduced as a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation resulting in environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces (Section 1, Rule 7, Part III, RPEC).

A unique feature of the RPEC is the capacity of the Courts to issue the Writ of Continuing Mandamus. It is issued when any officer, agency, or instrumentality of the government unlawfully neglects the performance of an act which the law specifically enjoins his office, trust or station to enforce or when there is a violation of environmental law (Section 1, Rule  8, Part III, RPEC). The court shall, in a Continuing Mandamus, require the violator to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance (Section 7, Rule 8, Part III, RPEC).

The nature of the Continuing Mandamus was aptly explained in the case of MMDA v. Concerned Citizens of Manila Bay. On December 18, 2008, Supreme Court rendered a Decision ordering MMDA and various government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to Class B level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation (G.R. Nos. 171947-48, February 15, 2011).

The government agencies in the said cases did not file any motion for reconsideration and the Decision became final in January 2009. The case was in the execution phase of the final and executory December 18, 2008 Decision. The Manila Bay Advisory Committee was created to receive and evaluate the quarterly progress reports on the activities undertaken by the agencies in accordance with the said decision, as well as to monitor the execution phase (G.R. Nos. 171947-48, February 15, 2011).

According to the Committee, this can be viewed as an encroachment over the powers and functions of the Executive Branch headed by the President of the Philippines. The Supreme Court said that this view is misplaced. The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the Court (G.R. Nos. 171947-48, February 15, 2011).

While additional activities are required of the agencies, such as the submission of plans of action, and data or status reports, these directives are but part and parcel of the execution stage of a final decision. With the final and executory judgment against MMDA, the Writ of Continuing Mandamus means that until MMDA and the other government agencies have shown full compliance with the Court’s orders, the Court exercises continuing jurisdiction over them until full execution of the judgment (G.R. Nos. 171947-48, February 15, 2011).

In the case instituted by the Carless People of the Philippines, parents, representing their children, who in turn represent "Children of the Future, and Car-owners who would rather not have cars if good public transportation were safe, convenient, accessible, available, and reliable" instituted an action against the Climate Change Commission and various government agencies.  They claimed that they are entitled to the issuance of the extraordinary Writs of Kalikasan and Continuing Mandamus due to the government's violation of "atmospheric trust" under the Constitution (Segovia et al. v. Climate Change Commission, G.R. No. 211010, March 7, 2017).

In more detail the petitioners claim, among others, that there is: (a) failure to implement the Road Sharing Principle; (b) failure to devote public open spaces along sidewalks, roads and parking lots to sustainable urban farming; and (c) failure to reduce air pollutant emissions. In denying the application for Writ of Kalikasan and Continuing Mandamus, the Supreme Court said that petition “fall short in showing an actual or threatened violation of the petitioners' constitutional right to a balanced and healthful ecology arising from an unlawful act … or any unlawful neglect on the part of the respondents…” (Segovia et al. v. Climate Change Commission, G.R. No. 211010, March 7, 2017).

Today, many strongly advocate the constitutional right to a balanced and healthful ecology, whether individually or collectively. It may have been driven by passion or entente. More than these motherhood statements, we must be responsible members of our community in refraining from littering the surroundings, indiscriminate pillaging of natural resources, keeping endangered species as pets, or engaging in illegal or unregulated fishing or coral poaching.  

Topics: Tranquil G.S. Salvador III , Writ of Kalikasan , environment , Pasig River
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