Case No. 3: ISAAA v.
Greenpeace
July 26, 2016, Per J. Perlas-Bernabe, En Banc:
Topic:
Judicial actions invoking environmental concepts require that the rights of the
complainant are actually and directly affected based on the elements of the
law.
Issue:
Whether or not the petition for Writ of Kalikasan against the Bt Talong field
trials alleged to be infringing on the people's right to a healthful ecology be
dismissed on the ground of mootness
Facts:
From 2007 to 2009, International Service for the Acquisition of Agri-
Biotech Applications, Inc. (ISAAA) and the University of the Philippines Los
Bañ os (UPLB) conducted a contained experiment for the Bt Talong
experiment under the supervision of the National Committee on Biosafety of
the Philippines (NCBP).
“BT Talong” are eggplants containing bacillus thuringiensis. Bacillus
thuringiensis is a soil bacterium which produces the Cry1Ac protein that is
toxic to the lepidopteran larvae. The lepidopterean larvae is the most
destructive pest to eggplants. Hence, the experiment was created to control
pest destruction to eggplants so that they can be fully maximized.
In 2010, the BCBP issued a Certificate after the contained experiment
certifying that all biosafety measures where complied with. The Bureau of
Plant Industries also issued two Biosafety Permits which will expire in 2012
for the commencement of the field testing. They
By 2012, after the expiration of the Biosafety Permits and the
termination of the field testing, Greenpeace Southeast Asia – Philippines,
Magsasaka At Siyentipiko Sa Pagpapaunlad Ng Agrikultura (MASIPAG) filed a
Petition for Writ of Continuing Mandamus and Writ of Kalikasan and for a
Temporary Environmental Protection Order against ISAAA alleging that the Bt
Talong field trials violated their right to health and a balanced ecology.
In 2015, the Supreme Court En Banc speaking through Justice Villarama,
Jr., granted the petition of Greenpeace and permanently enjoined the conduct
of Bt talong field trials. It held that the precautionary principle applies
because the risk of harm from the field trials of Bt Talong remains uncertain
and there exists a possibility of serious and irreversible harm. It found that
since eggplants are a staple vegetable in the country that is mostly grown by
small-scale farmers who are poor and marginalized; thus, given the country's
rich biodiversity, the consequences of contamination and genetic pollution
would be disastrous and irreversible.
DAO 08-2002, the guidelines followed by ICAAA and UPLB in conducting
the contained experiment and field testing, was rendered void for failing to
consider the provisions in the National Biosafety Framework under EO No.
514. It was declared unconstitutional for not heeding the requirement of
public participation in all stages of biosafety decision-making, pursuant to the
Cartagena Protocol on Biosafety, also enshrined in National Biosafety
Framework under EO No. 514; and that field testing should have been
subjected to Environmental Impact Assessment, pursuant to Cartagena
Protocol.
The Supreme Court in 2015 also did not find the issue moot. It found the
case of exceptional character and paramount public interest is involved, and it
is likewise capable of repetition yet evading review.
In 2016, ISAAA filed a Motion for Reconsideration arguing that the
petition should have been dismissed for mootness in view of the termination
and completion of the Bt Talong field trials, and the expiration of the Biosafety
Permits. It also argued that the SC erred in relying on studies which were not
offered in evidence, and involved Bt Corn, not Bt Talong, therefore the
precautionary principle is wrongly applied.
Arguments:
Greenpeace and MASIPAG argued that Bt Talong is a regulated article
under DAO 08-2002. Bt Talong is then presumed to be harmful to human
health and the environment. They pointed out that there is no independent,
peer-reviewed study showing its safety for human consumption and the
environment. Since the scientific evidence as to the safety of Bt Talong
remained insufficient or uncertain, and that preliminary scientific evaluation
shows reasonable grounds for concern, the precautionary principle should be
applied and, thereby, the field trials be enjoined. They also pointed out that
the requirements of an Environment Compliance Certificate, under PD No.
1151, and prior public consultations as provided in section 27 of the Local
Government Code were not complied with.
The ISAAA argued in their verified return to the Writ of Kalikasan that
the safety of Bt talong for human consumption is irrelevant because none of
the eggplants will be consumed by humans or animals and all materials not
used for analyses will be chopped, boiled, and buried following the conditions
of the Biosafety Permits. They also pointed out there is a plethora of scientific
works and literature, peer-reviewed, on the safety of Bt Talong for human
consumption, and that reliance on Bt Corn is improper.
They also furthered that the precautionary principle could not be
applied as the field testing was only a part of a continuing study to ensure that
such trials have no significant and negative impact on the environment.
Furthermore, they already complied with the prior consultation requirement
as provided for in the Local Government Code, and that the Environment
Compliance Certificate was not required for the field trials as it will not
significantly affect the environment nor pose a hazard to human health.
They insisted that the issue is moot due to the termination of the field
trials and the expiration of the biosafety permits.
Conclusion:
The petition for Writ of Kalikasan against the Bt Talong field trials
should be dismissed on the ground of mootness.
The termination of the field trials and the expiration of the biosafety
permits effectively negated the petition for Writ of Kalikasan as there was no
longer any field test to enjoin. As the event never went beyond the field testing
phase, none of the foregoing tasks related to propagation were pursued or the
requirements therefor complied with. Thus, there are no guaranteed after-
effects to the already concluded Bt Talong field trials that demand an
adjudication from which the public may perceivably benefit. Any future threat
to the right of the public to a healthful and balanced ecology is therefore more
imagined than real.
The Supreme Court further did not find the event capable of repetition
yet evading review, which is an exemption to the rule on dismissing petitions
on the ground of mootness, because DAO 08-2002 has already been
superseded by JDC 01-2016, a new regulation governing genetically modified
organisms’ (GMO) release to the market.
It is important to understand that the completion and termination of the
field tests do not mean that ISAAA may inevitably proceed to commercially
propagate Bt talong. DAO 08-2002, the prevailing regulation at that time,
recognizes three stages before GMOs, as products, ingredients, or processes,
may become commercially available:
1. The first stage is the Contained Use, where research on regulated
articles is limited inside a physical containment facility for purposes of
laboratory experimentation.
2. The second stage is Field Testing where regulated articles are
intentionally introduced into the environment in a highly regulated
manner also for experimental purposes. It is specifically recognized that
in field testing, no specific physical containment measures shall be
undertaken to limit that contact of the regulated article with the general
population and the environment. Prior to field testing, the results of the
contained experiments are taken into consideration.
3. Finally, the Propagation stage is where regulated articles are introduced
into commerce.
Each stage is distinct, such that subsequent stages can only proceed if
the prior stages are completed and clearance is given to engage in the next
regulatory stage:
1. For contained use, the importation or the removal from point of entry of
the material requires:
a. Authorization given by the Bureau of Plant Industry; and
b. A letter of endorsement issued by the National Committee on
Biosafety of the Philippines. The National Committee on Biosafety
of the Philippines, on the other hand, proceeds with its own
processes for evaluation of the application for contained use.
2. Field testing requires:
a. A permit to Field Test has been secured from the Bureau of Plant
Industry; and
b. The regulated article has been tested under contained conditions
in the Philippines.
3. Release for commercial propagation will not be allowed unless:
a. A Permit for Propagation has been secured from the Bureau of
Plant Industry;
b. It can be shown that based on field testing conducted in the
Philippines, the regulated article will not pose any significant risks
to the environment;
c. Food and/or feed safety studies show that the regulated article
will not pose any significant risks to human and animal health;
and
d. If the regulated article is a pest-protected plant, its
transformation event has been duly registered with the Fertilizer
and Pesticide Authority.
As mentioned earlier, JDC 01-2016 superseded DAO 08-2002 and it
provides a substantially different regulatory framework. It incorporated the
Cartagena Protocol on Biosafety, and allows for transparency and public
participation under the National Biosafety Framework. The CODEX
Alimentarius Guidelines was adopted to govern the risk assessment of
activities involving the research, development, handling and use,
transboundary movement, release into the environment, and management of
genetically modified plant and plant products derived from the use of modern
biotechnology.
Thus, the situation Greenpeace complained of is not susceptible to
repetition. DAO 08-2002 has already been superseded by JDC 01-2016. Hence,
future applications for field testing will be governed by JDC 01-2016 which
adopts a regulatory framework that is substantially different from that of DAO
08-2002.
