CHERRY BEPITEL

International Service for the Acquisition of Agri-Biotech Applications, Inc., et.al. v.

Greenpeace Southeast Asia (Philippines), et.al.

FACTS:In 1990, President Corazon Aquino signed (EO) No. 430 creating the National
Committee on Biosafety of the Philippines (NCBP) which was tasked to identify and evaluate
potential hazards involved in initiating genetic engineering experiments and introducing new
species and genetically engineered organisms and recommend measures to minimize risks.

 In 1991, NCBP formulated the Philippine Biosafety Guidelines which governs the regulation
of the importation or introduction, movement and field release of potentially hazardous biological
materials in the Philippines. The same was followed by the Guidelines on Planned Release of
Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic Species (PHES).
 On 29 December 1993, the Convention on Biological Diversity (CBD) came into force. This
is a multilateral treaty recognizing the great potential of modern biotechnology for human well-
being if developed and used with adequate safety measures for the environment and human
health.
 In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety
(Cartagena Protocol), a supplement to the CBD, which aims to ensure an adequate level of safe
transfer, handling and use of living modified organisms resulting from modern biotechnology.
The Philippines signed the same on May 24 of the same year.
 In April 2002, the Department of Agriculture (DA) issued DA Administrative Order No. 08
which provides rules and regulations for the importation and release into the environment of
plants and plant products derived from the use of modern biotechnology.
 On 24 September 2010, a Memorandum of Undertaking was executed between
International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), University of
the Philippines Los Baños Foundation, Inc. (UPLBFI) and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants that
are resistant to the fruit and shoot borer. Other partner agencies involved were UPLB through its
Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell
University and the Agricultural Biotechnology Support Project II (ABSPII) of USAID.
 TUPLB Field Trial Proposal states that the pest-resistant crop subject of the field trial was
described as a “bio-engineered eggplant.” The crystal toxin genes from the soil bacterium
Bacillus thuringiens (Bt) were incorporated into the eggplant genome to produce the protein
CrylAc which is toxic to target insect pests. The latter is said to be highly specific to lepidopteran
larvae such as fruit and shoot borer, the destructive insect pest of eggplant.
 NCBP issued a Certificate of Completion of Contained Experiment which was conducted
from 2007 to 3 March 2009 stating that during the conduct of experiment, all the biosafety
measures have been complied with and no untoward incident has occurred.
 On 16 March 2010, the Bureau of Plant Industry issued biosafety permits to UPLB.
 Field testing commenced on various dates in the following approved trial sites: Kabacan,
North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and
Bay, Laguna.
 On 26 April 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et.al.)
filed a petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance
of Temporary Environmental Protection Order (TEPO) alleging that the Bt talong field trials
violate their constitutional right to health and a balanced ecology considering that:
- The required Environmental Compliance Certificate (ECC) under PD 1151 was
not secured prior to the project implementation. There is no independent, peer-
reviewed study on the safety of Bt talong for human consumption and the
environment. There was a study conducted showing adverse effects on rats who
were fed Bt corn, local scientists likewise attested to the harmful effects of GMOs
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to human and animal health. Bt crops can be directly toxic to non-target species.
There is a failure to comply with the required public consultation under Sections
26 and 27 of the Local Government Code. The case calls for the application of
the precautionary principle, it being a classic environmental case where scientific
evidence as to the health, environmental and socio-economic safety is
insufficient or uncertain and preliminary scientific evaluation indicates reasonable
grounds for concern that there are potentially dangerous effects on human health
and the environment
The following reliefs are prayed for by Greenpeace, et.al., to wit:
- Issuance of a TEPO enjoining BPI and Fertilizer and Pesticide Authority (FPA) of
the Department of Agriculture from processing for field testing and registering as
herbicidal product Bt talong in the Philippines, stopping all pending field testing,
and ordering the uprooting of planted Bt talong; and
- Issuance of a writ of continuing mandamus commanding the ISAAAI, et.al.: (1) to
submit to an environmental impact statement system under the Environmental
Management Bureau of the Department of Environment and Natural Resources
(DENR-EMB); (2) to submit an independent, comprehensive, and rigid risk
assessment, field tests report, and regulatory compliance reports; (3) to submit
all issued certifications on public information, public consultation, public
participation and consent from the LGUs affected by the field testing; (4) to
submit an acceptable draft of an amendment of the NBF and DAO 2002-08; and
(5) for BPI of DA to conduct balanced nationwide public information on the nature
of Bt talong and Bt talong field trial, and a survey of its social acceptability.
 On 2 May 2012, the SC issued the writ of kalikasan
 SC, in a Resolution dated 10 July 2012, referred the case to the Court of Appeals.
 CA, in a Resolution dated 12 October 2012, resolved that: (1) the Greenpeace, et.al.
possess legal standing; (2) the case is not yet moot since it is capable of repetition yet
evading review; and (3) the alleged non-compliance with environmental and local
government laws present justiciable controversies for resolution by the court.
 On 17 May 2013, CA rendered a decision in favor of the Greenpeace, et.al. finding that
the precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases (the Rules) finds relevance in the case.
 CA rejected the Motions for Reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB
 CA further justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an “ecologically imbalancing act.”
 Before the SC is a consolidated petition of ISAAAI, EMB/BPI/FPA, UPLB and UPLBFI to
reverse the CA decision permanently enjoining the conduct of field trials for Genetically
Modified eggplants.

ISSUES: Whether or not Administrative Order No. 8 which provides rules and regulations for the
importation and release into the environment of genetically modified plant products, such as BT
corn or BT eggplant, is an arbitrary exercise of police power.

RULING: YES. Two constitutional provisions under Article II apply, viz.:

Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

Section 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
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Sections 15 and 16 imply that the standard to be used by the state in the discharge of its
regulatory oversight should be clear. This is where Administrative Order No. 8 fails. While
providing for processes, it does not refer to any standard of evaluating the applications to be
presented before the Department of Agriculture or, in field testing, the Scientific Review
Technical Panel. For instance, the regulators may be required to evaluate applications so that
there is a scientific demonstration of a "reasonable certainty of no harm" to both health and
environment in all aspects in the creation, testing, and propagation of genetically modified
ingredients, processes, or products.

Without these standards, Sections 15 and 16 become meaningless. Hence, in this regard,
Administrative Order No. 8 is null and void.

In addition to constitutional provisions, the Philippines also sources its environmental obligations
from conventions and subsequent protocols such as the Cartagena Protocol on Biosafety to the
Convention on Biodiversity which stresses that the public must be consulted in the decision-
making process regarding living modified organisms, and that the decisions made with this
regard must be communicated to the public. AO No. 8 fails to meet certain standards required
under the Cartagena Protocol. This Order requires an applicant for field testing of a regulated
article to create an Institutional Biosafety Committee. It is the applicant who chooses the
members of the Institutional Biosafety Committee.

The manner of choosing the composition of the Institutional Biosafety Committee is problematic.
Both the Cartagena Protocol and National Biosafety Framework require participation from
community members. However, in Administrative Order No. 8, the applicant has the initial
choice as to the community representatives who will participate as members of the Institutional
Biosafety Committee. The approval by the National Committee on Biosafety of the Philippines is
not a sufficient mechanism to check this discretion. This interagency committee can only
approve or disapprove community representatives that were already selected by the applicant.
The applicant does not have any incentive to choose the critical community representatives.
The tendency would be to choose those whose dissenting voices are tolerable. Worse, the
National Committee on Biosafety of the fl Philippines, apart from not being a sufficient oversight
for people's participation, is a government body. A government body is not the community that
should supposedly be represented in the Institutional Biosafety Committee.

For field testing under Administrative Order No. 8, the only opportunity for public participation is
prompted by the posting of the Public Information Sheet on Field Testing, which shall be posted
in three conspicuous places in the barangay/city/municipality for three consecutive weeks. The
interested party is given thirty (30) days within which to file a written comment on the
application. The posting of the Public Information Sheet in three conspicuous places near the
field testing site is not enough to raise awareness regarding the field testing being applied for.
The subject matter in transgenic transformation is too complex and its consequences too
pervasive as to simply leave this through the fictional notice of public posting. The positive duty
of the state requires more in terms of the creation of public awareness and understanding. For
instance, the Department of Agriculture is competent and large enough so as to make actual
face to face community meetings reasonable.

Also, under the National Biosafety Framework, there must be posting on the Internet to capture
the attention of relevant stakeholders which was not included in AO No.8. The mechanism
under Administrative Order No. 8 does not even require that local government authorities be
apprised about the proposed field testing.
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Section 8(H) requires the creation of a Scientific and Technical Review Panel. This is a group of
three independent scientists that reviews the risk assessment conducted by the Institutional
Biosafety Committee. The Scientific and Technical Review Panel does not have a community
representative. The absence of an effective mechanism for public feedback during the
application process for field testing means that Administrative Order No. 8 fails in meeting the
public participation requirement of the Cartagena Protocol and the National Biosafety
Framework.

Due to these fundamental deficiencies, Administrative Order No. 8 is null and void.