WE DO NOT INHERIT THE LAND FROM OUR ANCESTORS; WE BORROW IT FROM OUR CHILDREN. AM No.

09-6-8-SC Rules of Procedure for Environmental Cases PART III SPECIAL CIVIL ACTIONS

WRIT OF KALIKASAN
-Norma E. Agustin The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the Philippine Constitution which provides that:

RULE 7

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.
Section 15 of the same Article provides that:

The State shall protect and promote the right to health of the people and instill health consciousness among them.
Parenthetically, we have the following laws to protects our environment: (a) (b) (c) (d) (e) (f) (g) (h) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; P.D. No. 705, Revised Forestry Code P.D. No. 856, Sanitation Code; P.D. No. 979, Marine Pollution Decree; P.D. No. 1067, Water Code; P.D. No. 1151, Philippine Environmental Policy of 1977; P.D. No. 1433, Plant Quarantine Law of 1978; P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; (j) R.A. No. 4850, Laguna Lake Development Authority Act; (k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (l) R.A. No. 7076, Peoples Small-Scale Mining Act; (m)R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act; (o) R.A. No. 7942, Philippine Mining Act; (p) R.A. No. 8371, Indigenous Peoples Rights Act; (q) R.A. No. 8550, Philippine Fisheries Code; (r) R.A. No. 8749, Clean Air Act; (s) R.A. No. 9003, Ecological Solid Waste Management Act; (t) R.A. No. 9072, National Caves and Cave Resource Management Act; (u) R.A. No. 9147, Wildlife Conservation and Protection Act;100 A.M. No. 09-6-8-SC (v) R.A. No. 9175, Chainsaw Act; (w) R.A. No. 9275, Clean Water Act; (x) R.A. No. 9483, Oil Spill Compensation Act of 2007; (y) Provisions in C.A. No. 141, The Public Land Act; (z) R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; (aa) R.A. No. 7160, Local Government Code of 1991; (bb) R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC);

(cc) R.A. No. 7308, Seed Industry Development Act of 1992; (dd) R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; (ee) R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; (ff) R.A. No. 9522, The Philippine Archipelagic Baselines Law; (gg) R.A. No. 9593, Renewable Energy Act of 2008; (hh) R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. In 2007, special environmental courts were designated for improved environmental adjudication. However, in 2009, these Courts were swapmed with as many as 3,000 cases. Thus, former Chief Justice Reynato Puno deemed the need for more specific rules that can sufficiently address the procedural concerns that are peculiar to environmental cases. Thus were born the Rules of Procedure for environmental cases. Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, The use of a consent decree is an innovative way to resolve environmental cases. It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court. (3) environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus, (6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle. Most of the provisions included in said rules are remedies that are directed to the actual difficulties encountered by concerned government agencies, corporations, practitioners, peoples organizations, non-governmental organizations, and public-interest groups handling environmental cases. THE WRIT OF KALIKASAN It is a remedy available to a natural or juridical person, entity authorized by law, peoples organizations, non-governmental 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 OF KALIKASAN: NORMATIVE FOUNDATIONS ENVIRONMENTAL JUSTICE is now a recognized human right at this time that the planet is facing an ecological timebomb with threats of environmental disaster in different parts of the globe. INTERGENERATIONAL RESPONSIBILITY: The present generation has the responsibility to preserve the environment for generations yet to be born ( a doctrine enunciated in the Stockholm Declaration and by the Philippine Supreme Court in Oposa v. Factoran).

EXTRAORDINARY REMEDY The underlying emphasis in the Writ of Kalikasan is magnitude as it deals with damage that transcends political and territorial boundaries. Magnitude is thus measured when there is environmental damage that prejudices the life, health or property of inhabitants in two or more cities or provinces. As can be observed, the Wirt of Kalikasan does not include damage involving two or more municipalities because under this Writ, emphasis is placed on the magnitude. Under the Local Government Code of 1991, a municipality is composed of 25,000 inhabitants and has a

territory of 50 square kilometers while a city is composed of 150,000 inhabitants and has a territory of 100 square kilometers. WHO MAY FILE (1) a natural or juridical person; (2) entity authorized by law; or (3) peoples organization, non-governmental 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 involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. CITIZEN SUIT This provision liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and generations yet unborn. While the Rules liberalize the requirements for standing, in the case of non-government organizations (NGOs) and peoples organizations (POs), proof of their juridical personality (i.e.accreditation, recognition or registration) is required, given the relative ease by which a number of groups can loosely organize and label themselves as NGOs or POs. This is required to prevent fly by night groups from abusing the writ. Contents of Petition: (1) Name/s and personal circumstances of petitioner/s, and of respondent/s who if unknown and uncertain, may be described under assumed appellation; (2) The environmental law, rule or regulation violated or threatened to be violated , the act or omission complained of, and the environmental damage. (3) Evidence to be attached: affidavits of witnesses, documentary evidence, scientific or other expert studies, and object evidence; (4) The certification of non-forum shopping (5) The reliefs prayed for which may include a prayer for the issuance of a Temporary Protection Order *The Petition must be verified. The petition is required to allege the extent of the magnitude of the environmental damage. All relevant and material evidence must be attached to the petition to allow the court to determine whether the immediate issuance of the writ is warranted. TEPO is a relief available, as in the Writ of Continuing Mandamus. WHERE TO FILE The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. Venue. The magnitude of the environmental damage is the reason for limiting where the writ may be filed, to the Supreme Court or Court of Appeals whose jurisdiction is national in scope. Strictly speaking, the battle arena is in the Court of Appeals. After the Supreme Court issues a Writ of Kalikasan, the case is referred to the Court of Appeals for hearing, reception of evidence and rendition of judgement.

NO DOCKET FEES The petitioner shall be exempt from the payment of docket fees. The exemption from payment of docket fees is consistent with the character of the reliefs available under the writ, which excludes damages for personal injuries. This exemption also encourages public participation in availing of the remedy.

Effect of Filing of Writ of Kalikasan on other judicial actions: The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions. Prohibited Pleadings:
(a) Motion to dismiss; (b) Motion for extension of time to file return; (c) Motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; and (h) Motion to declare respondent in Default

Why prohibit certain pleadings? To expedite the judicial process. A motion for intervention is not a prohibited pleading. Thus, any interested party may file such a motion which affirms the public interest nature of the Writ of Kalikasan, a remedy which a large segment of the community may wish to avail of.

When is a Temporary Environmental Protection Order (or TEPO, which is equivalent to a TRO available? In case of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.
The court should periodically monitor the existence of acts which are the subject matter of the TEPO, the TEPO can being lifted anytime as the circumstances may warrant.

Dissolution of the TEPO: 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.

When to File Return: Within TEN days from receipt of notice Form and Content of Return: Must be verified; General denial of allegations is deemed an
admission, thus denials must be specific.

Effect of Failure to File Return: Court will hear the case ex parte Ultimate Reliefs to be prayed for/ granted:
Permanent Cease and Desist Order Order for rehabilitation or Restoration of damage Order for respondent to monitor strict compliance with court orders and decisions Order for respondent to make periodic reports on strict compliance with court orders and decisions. Such other reliefs (except award of damages to individual petitioners)

NOTE: The Court will not grant an award for personal damages which may be claimed in a

separate civil action.

THE PROCEDURE AT A GLANCE Filing of Initiatory Pleading Issuance of the Writ Manner: Personal or by registered mail Court of Jurisdiction: Court of Appeals OR Supreme Court Court orders issuance of writ within THREE days upon filing of the action IF the petition is sufficient in form and substance. Clerk of Court issues writ under seal of court Writ is served either personally, or by substituted service. Clerk of court who unduly delays issuance of writ shall be punished for contempt of court. Respondent files return of writ within NON-EXTENDIBLE period of TEN DAYS from receipt of writ. Effect of failure to file return: Court hears the case ex parte so as not to delay the proceedings. Court sets hearing UPON RECEIPT of return May include preliminary conference to simplify issues inorder to expedite proceedings Hearing period including preliminary conference should not exceed SIXTY DAYS After hearing, the court issues an order submitting the case for decision. It MAY require parties to submit a memorandum, if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision. Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan. Appeal may be raised from Court of Appeals to Supreme Court within FIFTEEN DAYS from notice of adverse judgment or denial of motion for reconsideration under Rule 45 of Rules of Court. Issues that may be raised: Issues of law and by way of exception to Rule 45, issues of fact In case of a winning judgment, it will be executed The execution will be governed by the ordinary rules.

Service of Writ

Filing of Return

Hearing

Submission

Judgment

Appeal

Execution

*Return the verified return shall contain all defenses to show that respondent did not violate or threaten to violate or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude provided under the rules. *Hearing - The environmental damage subject of the writ may involve issues that are of a complex character, and for this reason, the hearing is not summary. The abbreviated time frame required, however, insures that the proceedings are expedited.

Discovery Measures A party may file a verified motion for the following reliefs: 1. Ocular Inspection; order 2. Production or inspection of documents or things; order Ocular Inspection; order The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. Production or inspection of documents or things; order The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. The discovery measures are available to all parties to the writ. Considering that these measures are invasive, the court may prescribe conditions in any order granting such measures to safeguard constitutional rights. 14 POSSIBLE DEFENSES 1. No environmental damage 2. No environmental damage caused by Respondent 3. Environmental damage caused by another 4. Not environmental case 5. Not violate environmental law 6. Not prejudice life, health or property of inhabitants 7. Not affect 2 or more cities or provinces 8. No evidence 9. No causal link between act and damage 10. There is plain, speedy and adequate remedy exhaustion of administrative remedies. 11. Compliance with all laws and regulations 12. Compliance with all ECC conditions 13. Case amounts to SLAPP 14. Constitutional issues against the Rules The writ is a tool of last resort because it can be availed of when one project for example hs been issued an environmental clearance certificate (ECC) or has slipped past the process of the environmental impact assessment (EIA). However, the issuance of the writ does not mean a project is halted. It just places a burden on the respondent to prove that their operations will not or is not causing environmental harm. OTHER FEATURES OF WRIT OF KALIKASAN A homegrown judicial remedy available only in the Philippines Summary in nature; expedited disposition of cases Liberal rule on locus standi; organizations can stand in representation of communities or of those who suffered actual damage. No docket fee required to be paid by petitioner to strike a balance between ecological and economic development concerns. Allows submission of memorandum through email Allows discovery procedure in gathering evidence ( such as ocular inspection, production or inspection of documents or things) Applies PRECAUTIONARY PRINCIPLE: When human activities may lead to threats

of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat and lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Thus, this principle modifies the rules on

evidence in writ of kalikasan cases where the burden is on the respondents to prove that their activity that may cause damage to the environment is not in fact damaging. WRIT OF KALIKASAN: First Philippine Industrial Corporation (FPIC) Case In July 2010, a persistent fuel leak began to well up in the basement of the West Tower Condominium in Makati City, forcing the condominium residents to temporarily vacate the area. The leak was traced by experts to a 117 kilometer FPIC-operated pipeline which delivers petroleum products from Batangas to Manila. Claiming that pipeline leak causes a potential environmental and security threat" to the condominium residents as well as to people living in areas within two or more provinces and cities under which the pipeline runs, the residents filed a petition for a writ of kalikasan with the Supreme Court. In their petition, the residents prayed that the FPIC permanently shut down and replace the damaged pipeline. The residents also prayed that the Supreme Court compel the pipelines operator to rehabilitate and restore the environment" affected by the oil leak, and to open a special trust fund to answer for similar incidents in the future. They also prayed for a TEPO temporarily stopping the Lopez-owned First Philippine Industrial Corp. (FPIC) from operating its damaged pipeline. The Supreme Court granted the writ the first time it did so since the promulgation of the Rule on Kalikasan- and directed FPIC to cease and desist from operating the pipeline until further orders and to check the structural integrity of the whole span of the 117-km pipeline and give a report to the Court within 60 days. FPIC has been rehabilitating its pipelines. The TEPO has been lifted. The SC has since remanded the case to the Court of Appeals to determine if the petitioners are entitled to the privilege of the writ. Several instances wherein the SC issued Writ of Kalikasan. Protected Area Mgt. Board to refrain from issuing clearances for fish cage operations in Taal Lake; government to answer a petition seeking to stop mining operations in the Zamboanga Peninsula; Placer Dome and Barric Gold to clean up the toxic waste that spilled into the Boac River in Marinduque in 1996; Baguio City government to cease and desist from using the Irisan dump facility either as a holding or staging area or as controlled area for all kinds of solid wastes; Rehabilitating the Manila Bay by cleaning-up the river veins connected to the bay; and Stopping FPIC from operating the 117-kilometer Batangas-to-Manila oil pipeline after it leaked sometime in 2010.