Elizabeth Fisher, a renowned legal scholar at the University of Oxford, reminds us that environmental law isn’t a “magic wand.” Laws alone do not guarantee “happy ever after” endings. On July 8 and 9, the Malcolm Theater at the UP College of Law became a hub for the BIICL Global Toolbox on Corporate Climate Litigation, stirring discussions on legal responses to environmental issues and the judiciary’s vital role. However, the effectiveness of legal remedies, particularly the groundbreaking Writ of Kalikasan, received limited spotlight.
This article examines recent court actions on the territorial scope of ecological damage to justify the writ and its potential to redefine environmental justice.
Understanding the Writ of Kalikasan:
Criteria and Implications
Introduced by the Supreme Court in 2010, the writ is a beacon in Philippine law, addressing major environmental concerns such as oil pipeline leaks, open dump sites, hazardous plastic use, and GMO experimentation. The foundational case of Paje v. Casiño (G.R. No. 207257, February 3, 2015) highlights its role in offering judicial relief where legislative and administrative actions have fallen short.
Under the Rules of Procedure on Environmental Cases, the writ can be sought by individuals, entities, or groups on behalf of those whose constitutional right to a balanced and healthful ecology is violated or threatened. It requires evidence of environmental harm to life, health, or property in “two or more cities or provinces.”
Despite its significance, many remain perplexed about the writ’s impact and why certain activities persist even after its issuance. This confusion stems from the two types of writ: The first is a preliminary or peremptory writ, issued immediately after filing a petition, which requires a respondent to answer under oath within ten days but does not halt perceived violations. To this category belong the successive writs issued by the Supreme Court in 2023 to mining companies in Romblon (Batan v. Mines and Geosciences Bureau, G.R. No. 265146) and Palawan (Indigenous Cultural Communities of BICAMM Ancestral Domain, Brooke’s Point, Palawan v. Of ice of the Secretary of the DENR, G.R. No. 268140) without stopping their operations. The second is a judgment on the privilege of writ, issued after pleadings or affidavits and a trial. If granted, this writ can mandate actions such as permanently stopping certain acts or directing government or private entities, or individuals, to preserve, rehabilitate, or restore the environment. Only the Supreme Court or the Court of Appeals issues the writs.
Territorial Environmental Damage:
An Iron-clad Requirement?
On May 14, 2024, the Court of Appeals addressed a petition for a writ of kalikasan in Batan v. Mines and Geosciences Bureau (CA-G.R. SP No. 00037-WK) after the Supreme Court referred the case to it to hear evidence and render a decision. Following a widely reported clash between police and protesters, the Bantay Kalikasan ng Sibuyan sought to stop Altai Philippines Mining Corporation (APMC) from operating in San Fernando, Sibuyan Island, Romblon because of APMC’s lack of environmental compliance certificate and community acceptance. However, the Office of the Solicitor General and APMC questioned whether the allegations met the required scale of damage.
After proceedings, the court deemed the privilege of the writ inappropriate because the harm if true was limited to a single municipality within an island province. The conclusion reflects the Supreme Court’s tendency to deny this type of writ without proof of widespread ecological damage.
Consider LNL Archipelago Minerals, Inc. v. Agham Party List (G.R. No. 209165, April 12, 2016), where the evidence failed to show how constructing an access road on a low ridge impacts the communities of Zambales and Pangasinan; Braga v. Abaya (G.R. No. 223076, September 13, 2016), where the bidding process for expanding Sasa Wharf in Davao City was
not considered a threat to residents of multiple cities; Dela Cruz v. Meralco (G.R. No. 197878, November 10, 2020), where the installation of transmission lines at NAIA III in Pasay City involved only a narrow strip across two barangays; and Citizens for a Green and Peaceful Camiguin, Sulog Inc. v. King Energy, Inc. (G.R. No. 213426, June 29, 2021), where concerns over a diesel plant were confined to Camiguin island comprising municipalities.
The Reluctant Protector
In contrast, the Court of Appeals recently granted the privilege of writ to halt the propagation and sale of Golden Rice and Bt Eggplant (Magsasaka at Siyentipiko Para Sa Pag-unlad ng Agrikultura v. Secretary of Department of Agriculture, CA-G.R. SP No. 00038-Kalikasan, April 17, 2024), and to order the listing of non-environmentally friendly plastic products (Oceana Philippines International v. National Solid Waste Management, CA-G.R. SP No. 00035-WK, July 9, 2024), citing potential “national impact” in both petitions.
And there lies the rub. What about “localized” damage following the Sibuyan template? Much like solutions for the Anthropocene, the answer can be elusive or inadequate. Fortunately, legal innovation thrives. The absence of a writ should encourage exploring alternative avenues, recognizing that appellate courts may lack the time and expertise to resolve technical disputes thoroughly and that administrative agencies or lower courts with specialized training are better suited for such assessments.
In other words, reliance on the role of appellate courts in environmental protection assumes what environmental law experts like Fisher, Lange, and Scotford describe as “an almost paradoxical” exercise of simultaneously seeking the “importance and limits” of judicial involvement in environmental law. Thus, it is imperative to develop “specialist environmental tribunals” (Environmental Law: Text, Cases and Materials, 2nd Ed. [2019]) or revitalize “green benches” created under SC Administrative Circular No. 23-2008 to customize the writ for lower courts and bring it closer to the communities.
For example, marginalized groups and witnesses traveling from Luzon’s isolated areas to Manila for watershed destruction hearings face high costs, logistical hurdles, or personal risks, often discouraging the pursuit of the writ. Another troubling illustration is seen in Abogado v. DENR (G.R. No. 246209, September 3, 2019), where fisherfolk of Kalayaan Islands and Zambales either withdrew their petition or became unreachable after filing it at the Supreme Court.
Revisiting the writ’s stringent requirements, establishing evidentiary presumptions, reconsidering the burden of proof, and limiting appeals could address critical gaps. None of this is easy. But the lesson of the tragedy of the commons also demands collective disruptions of the rules. As Justice Marvic M.V.F Leonen admits, “[W]e cannot presume that only the Supreme Court can conscientiously fulfill the ecological duties required of the entire state.”
Meanwhile, advocates will continue pushing for single political subdivisions, like the treasure islands of Bohol and Palawan, to be included within the writ’s ambit. After all, environmental issues transcend boundaries. But until the eco-battlegrounds change, petitioners must navigate the un-fairy tale requirement of two or more cities or provinces.
Noel B. Lazaro is a director and general counsel at Global Ferronickel Holdings, Inc. His extensive practice spans diverse fields, including environmental litigation. A UP College of Law graduate, he teaches evidence, special proceedings, and special writs at law schools.
Mary Louisse S. Inguillo is a senior legal officer at Platinum Group Metals Corporation, specializing in corporate law and litigation. A DLSU-Tañada-Diokno School of Law graduate, she lectures on special proceedings and criminal procedure at law schools.
