FINALS NATRES CASE PAJE vs CASINO 1

G.R. No. 207257 February 3, 2015 On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006
HON. RAMON JESUS P. PAJE, in his capacity as SECRETARY OF THE to Redondo Peninsula Energy, Inc. (RP Energy), a corporation duly organized and existing
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR) vs. under the laws of the Philippines with the primary purpose of building, owning, and operating
HON. TEODORO A. CASIÑO powerplants in the Philippines, among others. Accordingly, an Addendum to the said MOU
was executed by SBMA and RP Energy.
G.R. No. 207276
REDONDO PENINSULA ENERGY, INC. vs. HON. TEODORO A. CASIÑO RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact
G.R. No. 207282 Statement (EIS) for the proposed coal-fired power plant and to assist RP Energy in applying
HON. TEODORO A. CASIÑO vs. RAMON JESUS P. PAJE for the issuance of an ECC from the Department of Environment and Natural Resources
G.R. No. 207366 (DENR). On August 27, 2008, the Sangguniang Panglungsod of Olongapo City issued
SUBIC BAY METROPOLITAN AUTHORITY vs. HON. TEODORO A. CASIÑO Resolution No. 131, Series of 2008, expressing the city government’s objection to the coal-
fired power plant as an energy source and urging the proponent to consider safer alternative
DEL CASTILLO, J.: sources of energy for Subic Bay.

About the Case: PETITIONS for review on certiorari of the decision and resolution of the On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an
Court of Appeals. ECC for the proposed 2x150-MW coal-fired power plant.

Before this Court are consolidated Petitions for Review on Certiorari assailing the Decision Sometime thereafter, RP Energy decided to include additional components in its proposed
dated January 30, 2013 and the Resolution3 dated May 22, 2013 of the Court of Appeals (CA) coal-fired power plant. Due to the changes in the project design, which involved the inclusion
in CA-G.R. SP No. 00015, entitled "Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P. of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection
Paje, et al." system, drainage channel improvement, and a 230kV double-circuit transmission line, RP
Energy requested the DENR Environmental Management Bureau (DENR-EMB) to amend its
Decision: Petition in G.R. No. 207282 denied; while petitions in G.R. Nos. 207257, 207366 ECC. In support of its request, RP Energy submitted to the DENR-EMB an Environmental
and 207276 granted. Performance Report and Management Plan (EPRMP), which was prepared by GHD.

Factual Antecedents On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement
(LDA) over a 380,004.456-square meter parcel of land to be used for building and operating
In February 2006, Subic Bay Metropolitan Authority· (SBMA), a government agency the coal-fired power plant.
organized and established under Republic Act No. (RA) 7227, and Taiwan Cogeneration
Corporation (TCC) entered into a Memorandum of Understanding (MOU) expressing their On July 8, 2010, the DENR-EMB issued an amended ECC (first amendment) allowing the
intention to build a power plant in Subic Bay which would supply reliable and affordable inclusion of additional components, among others.
power to Subic Bay Industrial Park (SBIP).
Several months later, RP Energy again requested the DENR-EMB to amend the ECC. Instead
On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to of constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought to
build and operate a coal-fired power plant. In the said MOU, TCC identified 20 hectares of construct a 1x300-MWcoal-fired power plant. In support of its request, RP Energy submitted a
land at Sitio Naglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the suitable area for Project Description Report (PDR) to the DENR-EMB.
the project and another site of approximately 10 hectares to be used as an ash pond. TCC
intends to lease the property from SBMA for a term of 50 years with rent fixed at$3.50 per On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second
square meter, payable in 10 equal 5-year installments. amendment).

On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance On August 1, 2011, the Sangguniang Panglalawigan of Zambales issued Resolution No. 2011-
Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration 149, opposing the establishment of a coal-fired thermal power plant at Sitio Naglatore, Brgy.
International Corporation (TCIC), a subsidiary of TCC, for the construction, installation, and Cawag, Subic, Zambales.
operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at
Sitio Naglatore. On August 11, 2011, the Liga ng mga Barangay of Olongapo City issued Resolution No. 12,
Series of 2011, expressing its strong objection to the coal-fired power plant as an energy
source.
 FINALS NATRES CASE PAJE vs CASINO 2
government units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of Republic Act No. 7160
On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. or the Local Government Code;
Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. 3. Whether x x x Section 8.3 of DEN Administrative Order No. 2003-30 (‘DAO No. 2003-30,’
Paulino,Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. x x x ) providing for the amendment of an ECC is null and void for being ultra vires; and
Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, 4. Whether x x x the amendment of Energy’s ECC under Section 8.3 of DAO No. 2003-30 is
Charo Simons, Gregorio Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso,Rodolfo null and void.
Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario
Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group) B. Respondent RP Energy
filed before this Court a Petition for Writ of Kalikasan against RP Energy, SBMA, and Hon.
Ramon Jesus P. Paje, in his capacity as Secretary of the DENR. 1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;
On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of Kalikasan; and (2) 1.1 Whether x x x the same is valid until annulled;
refer the case to the CA for hearing and reception of evidence and rendition of judgment.
While the case was pending, RP Energy applied for another amendment to its ECC (third 2. Whether x x x petitioners exhausted their administrative remedies with respect to the
amendment) and submitted another EPRMP to the DENR-EMB, proposing the construction amended ECC for the 1x300 MW Power Plant;
and operation of a 2x300-MW coal-fired power plant. 2.1 Whether x x x the instant Petition is proper;

On September 11, 2012, the Petition for Writ of Kalikasan was docketed as CA-G.R. SP No. 3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of
00015 and raffled to the Fifteenth Division of the CA.31 In the Petition, the Casiño Group the DENR ECC and its amendment;
alleged, among others, that the power plant project would cause grave environmental
damage;32 that it would adversely affect the health of the residents of the municipalities of 3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous
Subic, Zambales, Morong, Hermosa, and the City of Olongapo;33 that the ECC was issued Peoples is applicable in the instant case;
and the LDA entered into without the prior approval of the concerned sanggunians as required
under Sections 26 and 27 of the Local Government Code (LGC);34 that the LDA was entered 4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code
into without securing a prior certification from the National Commission on Indigenous is necessary for the issuance of the DENR ECC and its amendments, and what constitutes
Peoples (NCIP) as required under Section 59 of RA8371 or the Indigenous Peoples’ Rights LGU approval;
Act of 1997 (IPRA Law);35 that Section 8.3 of DENR Administrative Order No. 2003-30
(DAO 2003-30) which allows amendments of ECCs is ultra vires because the DENR has no 5. Whether x x x there is a threatened or actual violation of environmental laws to justify the
authority to decide on requests for amendments of previously issued ECCs in the absence of a Petition;
new EIS; and that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP 5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal
Energy’s ECC are null and void. standards on thermal pollution of coastal waters, air pollution, water pollution, and acid
deposits on aquatic and terrestrial ecosystems; and
On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with
their respective counsels, appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. 6. Whether x x x the instant Petition should be dismissed for failure to comply with the
Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo, requirements of proper verification and certification of non-forum shopping with respect to
Evangeline Q. Rodriguez, and the SBMA. The matters taken up during the preliminary some petitioners.
conference were embodied in the CA’s Resolution dated November 5, 2012, to wit:
C. Respondent DENR Secretary Paje
I. ISSUES A. Petitioners (Casiño Group)
1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy
1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of requires compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the
RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x ) Local Government Code;
and its amendment to 1x300 MW Power Plant, and the Lease and Development Agreement 2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this
between SBMA and RP Energy complied with the Certification Precondition as required proceeding; and
under Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.
(‘IPRA Law,’ x x x);
2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 II. ADMISSIONS/DENIALS
MW Power Plant without prior consultation with and approval of the concerned local
 FINALS NATRES CASE PAJE vs CASINO 3
Petitioners, through Atty. Ridon, admitted all the allegations in RP Energy’s Verified Return,
except the following: On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third
amendment to its ECC, approving the construction and operation of a 2x300-MW coal-fired
1. paragraphs 1.4 to 1.7; power plant, among others.
2. paragraphs 1.29 to 1.32; and
3. paragraphs 1.33 to 1.37. Ruling of the Court of Appeals

Petitioners made no specific denial with respect to the allegations of DENR Secretary Paje’s On January 30, 2013, the CA rendered a Decision denying the privilege of the writ of
Verified Return. x x x kalikasan and the application for an environment protection order due to the failure of the
Casiño Group to prove that its constitutional right to a balanced and healthful ecology was
Respondent RP Energy proposed the following stipulations, which were all admitted by violated or threatened. The CA likewise found no reason to nullify Section 8.3 of DAO No.
petitioners, through Atty. Ridon, viz: 2003-30. It said that the provision was not ultra vires, as the express power of the Secretary of
the DENR, the Director and Regional Directors of the EMB to issue an ECC impliedly
1. The 1x300 MW Power Plant is not yet operational; includes the incidental power to amend the same. In any case, the CA ruled that the validity of
2. At present, there is no environmental damage; the said section could not be collaterally attacked in a petition for a writ of kalikasan.
3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone;
and Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-
4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of compliance with Section 59 of the IPRA Law and Sections 26 and 27 of the LGC and for
DAO No. 2003-30. failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix his signature in
the Sworn Statement of Full Responsibility, which is an integral part of the ECC. Also
Public respondent DENR Secretary Paje did not propose any matter for stipulation. declared invalid were the ECC first amendment dated July 8, 2010 and the ECC second
amendment dated May 26, 2011 in view of the failure of RP Energy to comply with the
Thereafter, trial ensued. restrictions set forth in the ECC, which specifically require that "any expansion of the project
beyond the project description or any change in the activity x x x shall be subject to a new
The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term Environmental Impact Assessment." However, as to the ECC third amendment dated
representative of the Kabataan Partylist in the House of Representatives; (2) Alex C. Hermoso, November 15, 2012, the CA decided not to rule on its validity since it was not raised as an
the convenor of the Zambales-Olongapo City Civil Society Network, a director of the PREDA issue during the preliminary conference.
Foundation, and a member of the Zambales Chapter of the Kaya Natin Movement and the
Zambales Chapter of the People Power Volunteers for Reform; and (3) Ramon Lacbain, the The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued
Vice Governor of the Province of Zambales. without the prior consultation and approval of all the sanggunians concerned as required under
Sections 26 and 27 of the LGC, and in violation of Section 59, Chapter VIII ofthe IPRA Law,
RP Energy presented five witnesses, namely: (1) Junisse P. Mercado (Ms. Mercado), an which enjoins all departments and other governmental agencies from granting any lease
employee of GHD and the Project Director of ongoing projects for RP Energy regarding the without a prior certification that the area affected does not overlap with any ancestral domain.
proposed power plant project; (2) Juha Sarkki (Engr. Sarkki), a Master of Science degree The CA noted that no CNO was secured from the NCIP prior to the execution of the LDA, and
holder in Chemical Engineering; (3) Henry K. Wong, a degree holder of Bachelor of Science that the CNO dated October 31, 2012 was secured during the pendency of the case and was
Major in Mechanical Engineering from Worcester Polytechnic Institute; (4) Dr. Ely Anthony issued in connection with RP Energy’s application for a 2x300-MW coalfired power plant.
R. Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer, and Environmental
Planner in the Philippines; and (5) David C. Evangelista (Mr. Evangelista), a Business Thus, the CA disposed of the case in this wise:
Development Analyst working for RP Energy.
WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of
SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty. the writ of kalikasan and the application for an environmental protection order. The prayer to
Rodriguez). declare the nullity of Section 8.3 of the DENR Administrative Order No. 2003-30 for being
ultra vires is DENIED; and the following are all declared INVALID:
The DENR, however, presented no evidence.
1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22
Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in December 2008 issued in favor of respondent Redondo Peninsula Energy, Inc. by former
connection with RP Energy’s application for the 2x300-MW coal-fired power plant. Secretary Jose L. Atienza, Jr. of the Department of Environment and Natural Resources;
 FINALS NATRES CASE PAJE vs CASINO 4
2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May operations; and that increased sulfur oxides (SOx) and nitrogen oxides (NOx) emissions may
2011, both issued in favor ofrespondent Redondo Peninsula Energy, Inc. by OIC Director occur during plant operations. It also claims that when the SBMA conducted Social
Atty. Juan Miguel T. Cunaof the Department of Environment and Natural Resources, Acceptability Policy Consultations with different stakeholders on the proposed power plant,
Environmental Management Bureau; and the results indicated that the overall persuasion of the participants was a clear aversion to the
3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents project due to environmental, health, economic and socio-cultural concerns. Finally, it
Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc. involving a parcel of contends that the ECC third amendment should also be nullified for failure to comply with the
land consisting of ₱380,004.456 square meters. SO ORDERED. procedures and requirements for the issuance of the ECC.

The DENR and SBMA separately moved for reconsideration. RP Energy filed a Motion for The DENR’s arguments
Partial Reconsideration, attaching thereto a signed Statement of Accountability. The Casiño
Group, on the other hand, filed Omnibus Motions for Clarification and Reconsideration. The DENR imputes error on the CA in invalidating the ECC and its amendments, arguing
that the determination of the validity of the ECC as well as its amendments is beyond the
On May 22, 2013, the CA issued a Resolution denying the aforesaid motions for lack of merit. scope of a Petition for a Writ of Kalikasan. And even if it is within the scope, there is no
The CA opined that the reliefs it granted in its Decision are allowed under Section 15, Rule 7 reason to invalidate the ECC and its amendments as these were issued in accordance with
of the Rules of Procedure for Environmental Cases as the reliefs enumerated therein are broad, DAO No. 2003-30. The DENR also insists that contrary to the view of the CA, a new EIS was
comprehensive, and nonexclusive. In fact, paragraph (e) of the said provision allows the no longer necessary since the first EIS was still within the validity period when the first
granting of "such other reliefs" in consonance with the objective, purpose, and intent of the amendment was requested, and that this is precisely the reason RP Energy was only required
Rules. SBMA’s contention that the stoppage of a project for non-compliance with Section 59 to submit an EPRMP in support of its application for the first amendment. As to the second
of the IPRA Law may only be done by the indigenous cultural communities or indigenous amendment, the DENR-EMB only required RP Energy to submit documents to support the
peoples was also brushed aside by the CA as the Casiño Group did not file a case under the proposed revision considering that the change in configuration of the power plant project,
IPRA Law but a Petition for a Writ of Kalikasan, which is available to all natural or juridical from 2x150MW to 1x300MW, was not substantial. Furthermore, the DENR argues that no
persons whose constitutional right to a balanced and healthful ecology is violated, or permits, licenses, and/or clearances from other government agencies are required in the
threatened to be violated. As to RP Energy’s belated submission of a signed Statement of processing and approval of the ECC. Thus, non-compliance with Sections 26 and 27 of the
Accountability, the CA gave no weight and credence to it as the belated submission of such LGC as well as Section 59 ofthe IPRA Law is not a ground to invalidate the ECC and its
document, long after the presentation of evidence of the parties had been terminated, is not in amendments. The DENR further posits that the ECC is not a concession, permit, or license but
accord with the rules of fair play. Neither was the CA swayed by the argument that the omitted is a document certifying that the proponent has complied with all the requirements of the EIS
signature of Luis Miguel Aboitiz is a mere formal defect, which does not affect the validity of System and has committed to implement the approved Environmental Management Plan. The
the entire document. The dispositive portion of the Resolution reads: WHEREFORE, DENR invokes substantial justice so that the belatedly submitted certified true copy of the
premises considered, respondents Subic Bay Metropolitan Authority’s Motion for ECC containing the signature of Mr. Aboitiz on the Statement of Accountability may be
Reconsideration dated 18 February 2013, Department of Environment and Natural accepted and accorded weight and credence.
Resources Secretary Ramon Jesus P. Paje’s Motion for Reconsideration dated 19
February 2013, and Redondo Peninsula Energy, Inc.’s Motion for Partial SBMA’s arguments
Reconsideration dated 22 February 2013, as well as petitioners’ Omnibus Motions for
Clarification and Reconsideration dated 25 February 2013,are all DENIED for lack of For its part, SBMA asserts that since the CA did not issue a Writ of Kalikasan, it should not
merit. SO ORDERED. have invalidated the LDA and that in doing so, the CA acted beyond its powers.90 SBMA
likewise puts in issue the legal capacity of the Casiño Group to impugn the validity of the
Unsatisfied, the parties appealed to this Court. LDA91 and its failure to exhaust administrative remedies.92 In any case, SBMA contends that
there is no legal basis to invalidate the LDA as prior consultation under Sections 26 and 27 of
The Casiño Group’s arguments the LGC is not required in this case considering that the area is within the SBFZ.93 Under RA
7227, it is the SBMA which has exclusive jurisdiction over projects and leases within the
The Casiño Group, in essence, argues that it is entitled to a Writ of Kalikasan as it was SBFZ and that in case of conflict between the LGC and RA 7227, it is the latter, a special law,
able to prove that the operation of the power plant would cause environmental damage which must prevail.94 Moreover, the lack of prior certification from the NCIP is alsonot a
and pollution, and that this would adversely affect the residents of the provinces of ground to invalidate a contract.95 If at all, the only effect of non-compliance with the said
Bataan and Zambales, particularly the municipalities of Subic, Morong, Hermosa, and requirement under Section 59 of the IPRA Law is the stoppage or suspension of the project.96
the City of Olongapo. It cites as basis RP Energy’s EIS, which allegedly admits that acid rain Besides, the subsequent issuance of a CNO has cured any legal defect found in the LDA.97
may occur in the combustion of coal; that the incidence of asthma attacks among residents in
the vicinity of the project site may increasedue to exposure to suspended particles from plant RP Energy’s arguments
 FINALS NATRES CASE PAJE vs CASINO 5
Under Section 1 of Rule 7, the following requisites must be present to avail of this
RP Energy questions the proprietyof the reliefs granted by the CA considering that it did not extraordinary remedy: (1) there is an actual or threatened violation of the constitutional right
issue a writ of kalikasanin favor of the Casiño Group.98 RP Energy is of the view that unless a to a balanced and healthful ecology; (2) the actual or threatened violation arises from an
writ of kalikasanis issued, the CA has no power to grant the reliefs prayed for in the unlawful act or omission of a public official or employee, or private individual or entity; and
Petition.99 And even if it does, the reliefs are limited to those enumerated in Section 15, Rule (3) the actual or threatened violation involves or will lead to an environmental damage of such
7 of the Rules of Procedure for Environmental Cases and that the phrase "such other reliefs" in magnitude as to prejudice the life, health or property ofinhabitants in two or more cities or
paragraph (e) should be limited only to those of the same class or general nature as the four provinces.
other reliefs enumerated.100 As to the validity of the LDA, the ECC and its amendments, the
arguments of RP Energy are basically the same arguments interposed by SBMA and the Expectedly, the Rules do not definethe exact nature or degree of environmental damage but
DENR. RP Energy maintains that the ECC and its amendments were obtained in compliance only that it must be sufficientlygrave, in terms of the territorial scope of such damage, so as
with the DENR rules and regulations;101 that a CNO is not necessary in the execution of tocall for the grant ofthis extraordinary remedy. The gravity ofenvironmental damage
anLDA and in the issuance of the ECC and its amendments;102 and that prior approval of the sufficient to grant the writ is, thus, to be decided on a case-to-case basis.
local governments, which may be affected by the project, are not required because under RA
7227, the decision of the SBMA shall prevail in matters affecting the Subic Special Economic If the petitioner successfully proves the foregoing requisites, the court shall render judgment
Zone (SSEZ), except in matters involving defense and security.103 RP Energy also raises the granting the privilege of the writ of kalikasan. Otherwise, the petition shall be denied. If the
issue of non-exhaustion of administrative remedies on the part of the Casiño Group.104 petition is granted, the court may grant the reliefs provided for under Section 15of Rule 7, to
Preliminaries wit: Section 15. Judgment.- Within sixty (60) daysfrom the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan.
kalikasan. It presents some interesting questions about law and justice in the context of
environmental cases, which we will tackle in the main body of this Decision. The reliefs that may be granted under the writ are the following:

But we shall first address some preliminary matters, in view of the manner by which the (a) Directing respondent to permanently cease and desist from committing acts or neglecting
appellate court disposed of this case. the performance of a duty in violation of environmental laws resulting in environmental
destruction or damage;
The Rules on the Writ of Kalikasan,105 which is Part III of the Rules of Procedure for
Environmental Cases,106 was issued by the Court pursuant to its power to promulgate rules (b) Directing the respondent public official, government agency, private person or entity to
for the protection and enforcement of constitutional rights,107 in particular, the individual’s protect, preserve, rehabilitate or restore the environment;
rightto a balanced and healthful ecology.108 Section 1 of Rule 7 provides:
(c) Directing the respondent public official, government agency, private person or entity to
Section 1. Nature of the writ.- The writ is a remedy available to a natural or juridical person, monitor strict compliance with the decision and orders of the court;
entity authorized by law, people’s organization, nongovernmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons (d) Directing the respondent public official, government agency, or private person or entity to
whose constitutional right to a balanced and healthful ecology is violated, or threatened with make periodic reports on the execution of the final judgment; and
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 (e) Such other reliefs which relate to the right of the people to a balanced and healthful
property of inhabitants in two or more cities or provinces. ecology or to the protection, preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.
The writ is categorized as a special civil action and was, thus, conceptualized as an
extraordinary remedy,which aims to provide judicial relief from threatened or actual It must be noted, however,that the above enumerated reliefs are non-exhaustive. The reliefs
violation/s of the constitutional right to a balanced and healthful ecology of a magnitude or that may be granted under the writ are broad, comprehensive and non-exclusive.112
degree of damage that transcends political and territorial boundaries.109 It is intended "to
provide a strongerdefense for environmental rights through judicial efforts where institutional Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the
arrangements of enforcement, implementation and legislation have fallen short"110 and seeks reliefs granted by the appellate court, i.e.invalidating the ECC and its amendments, are
"to address the potentially exponential nature of large-scale ecological threats."111 improper because it had deniedthe Petition for Writ of Kalikasanupon a finding that the Casiño
Group failed to prove the alleged environmental damage, actual or threatened, contemplated
under the Rules.
 FINALS NATRES CASE PAJE vs CASINO 6
party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance
Ordinarily, no reliefs could and should be granted. But the question may be asked, could not of an ECC must not only allege and prove such defects or irregularities, but mustalso provide a
the appellate court have granted the Petition for Writ of Kalikasanon the ground of the causal link or, at least, a reasonable connection between the defects or irregularities in the
invalidity of the ECC for failure to comply with certain laws and rules? issuance of an ECC and the actual or threatened violation of the constitutional right to a
balanced and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the
This question is the starting point for setting up the framework of analysis which should petition should be dismissed outright and the action re-filed before the proper forum with due
govern writ of kalikasan cases. regard to the doctrine of exhaustion of administrative remedies. This must be so ifwe are to
preserve the noble and laudable purposes of the writ against those who seek to abuse it.
In their Petition for Writ of Kalikasan,113 the Casiño Group’s allegations, relative to the
actual or threatened violation of the constitutional right to a balanced and healthful ecology, An example of a defect or an irregularity in the issuance of an ECC, which could conceivably
may be grouped into two. warrant the granting of the extraordinary remedy of the writ of kalikasan, is a case where there
are serious and substantial misrepresentations or fraud in the application for the ECC, which,
The first set of allegations deals withthe actual environmental damage that will occur if the if not immediately nullified, would cause actual negative environmental impacts of the
power plant project isimplemented. The Casiño Group claims that the construction and magnitude contemplated under the Rules, because the government agenciesand LGUs, with
operation of the power plant will result in (1) thermal pollution of coastal waters, (2) air the final authority to implement the project, may subsequently rely on such substantially
pollution due to dust and combustion gases, (3) water pollution from toxic coal combustion defective or fraudulent ECC in approving the implementation of the project.
waste, and (4) acid deposition in aquatic and terrestrial ecosystems, which will adversely
affect the residents of the Provinces of Bataan and Zambales, particularly the Municipalities of To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to
Subic, Morong and Hermosa, and the City of Olongapo. merely allege such defects or irregularities, but to show a causal link or reasonable connection
with the environmental damage of the magnitude contemplated under the Rules. In the case at
The second set of allegations deals with the failureto comply with certain laws and rules bar, no such causal link or reasonable connection was shown or even attempted relative to the
governing or relating to the issuance ofan ECC and amendments thereto. The Casiño Group aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities
claims that the ECC was issued in violation of (1) the DENR rules on the issuance and in the issuance of the ECC. This would havebeen sufficient reason to disallow the resolution
amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual for of such issues in a writ of kalikasan case.
DAO 2003-30 (Revised Manual), (2) Section 59 of the IPRA Law,and (3) Sections 26 and 27
of the LGC. In addition, it claims that the LDA entered into between SBMA and RP Energy However, inasmuch as this is the first time that we lay down this principle, we have liberally
violated Section 59 of the IPRA Law. examined the alleged defects or irregularities in the issuance of the ECC and find that there is
only one group of allegations, relative to the ECC, that can be reasonably connected to
As to the first set of allegations, involving actual damage to the environment, it is not difficult anenvironmental damageof the magnitude contemplated under the Rules. This is withrespect
to discern that, if they are proven, then the Petition for Writ of Kalikasan could conceivably be to the allegation that there was no environmental impact assessment relative to the first and
granted. second amendments to the subject ECC. If this were true, then the implementation of the
project can conceivably actually violate or threaten to violate the right to a healthful and
However, as to the second set of allegations, a nuanced approach is warranted. The power of balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of
the courts to nullify an ECC existed even prior to the promulgation of the Rules on the Writ of such an issue could conceivably be resolved in a writ of kalikasan case provided that the case
Kalikasanfor judicial review of the acts of administrative agencies or bodies has long been does not violate, or is anexception to the doctrine of exhaustion of administrative remedies and
recognized114 subject, of course, to the doctrine of exhaustion of administrative remedies.115 primary jurisdiction.116

But the issue presented before us is nota simple case of reviewing the acts of an administrative As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the
agency, the DENR, which issued the ECC and its amendments. The challenge to the validity LDA, likewise, violated the IPRA Law, we find the same not to be within the coverage of the
ofthe ECC was raised in the context of a writ of kalikasancase. The question then is, can the writ of kalikasanbecause, assuming there was non-compliance therewith, no reasonable
validity of an ECC be challenged viaa writ of kalikasan? connection can be made to an actual or threatened violation of the right to a balanced and
healthful ecology of the magnitude contemplated under the Rules.
We answer in the affirmative subject to certain qualifications.
To elaborate, the alleged lackof approval of the concerned sanggunians over the subject
As earlier noted, the writ of kalikasanis principally predicated on an actual or threatened project would not lead toor is not reasonably connected with environmental damage but,
violation of the constitutional right to a balanced and healthful ecology, which involves rather, it is an affront to the local autonomy of LGUs. Similarly, the alleged lack of a
environmental damage of a magnitude that transcends political and territorial boundaries. A certificate precondition that the project site does not overlap with an ancestral domain would
 FINALS NATRES CASE PAJE vs CASINO 7
not result inor is not reasonably connected with environmental damage but, rather, it is an 5. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a
impairment of the right of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to precondition to the consummation of the Lease and Development Agreement (LDA) between
their ancestral domains. These alleged violationscould be the subject of appropriate remedies SBMA and RPEnergy and the lack of its prior issuance rendered the LDA invalid.
before the proper administrative bodies (like the NCIP) or a separate action to compel
compliance before the courts, as the case may be. However, the writ of kalikasan would not be 6. Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of
the appropriate remedy to address and resolve such issues. the concerned sanggunianrequirement) is necessary prior to the implementation of the power
plant project.
Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those
which are not, commingled as it were here, because of the exceptional character of this case. 7. Whether the validity of the third amendment to the ECC can be resolved in this case.
We take judicial notice of the looming power crisis that our nation faces. Thus, the resolution
of all the issues in this case is of utmost urgency and necessity in order to finally determine the Ruling
fate of the project center of this controversy. If we were to resolve only the issues proper in a
writ of kalikasancase and dismiss those not proper therefor, that will leave such unresolved The parties to this case appealed from the decision of the appellate court pursuant to Section
issues open to another round of protracted litigation. In any case, we find the records sufficient 16, Rule7 of the Rules of Procedure for Environmental Cases, viz:
to resolve all the issues presented herein. We also rule that, due to the extreme urgency of the
matter at hand, the present case is an exception to the doctrine of exhaustion of administrative Section 16. Appeal.- Within fifteen (15) days from the date of notice of the adverse judgment
remedies.117 As we have often ruled, in exceptional cases, we can suspend the rules of or denialof motion for reconsideration, any party may appeal to the Supreme Court under
procedure in order to achieve substantial justice, and to address urgent and paramount State Rule45 of the Rules of Court. The appeal may raise questions of fact. (Emphasis supplied)
interests vital to the life of our nation.
It is worth noting that the Rules on the Writ of Kalikasan allow the parties to raise, on appeal,
Issues questions of fact— and, thus, constitutes an exception to Rule 45 of the Rules of Court—
because ofthe extraordinary nature of the circumstances surrounding the issuance of a writ of
In view of the foregoing, we shall resolve the following issues: kalikasan.118 Thus, we shall review both questions of law and fact in resolving the issues
presented in this case.
1. Whether the Casiño Group was able to prove that the construction and operation of the
power plant will cause grave environmental damage. We now rule on the above-mentioned issues in detail.

1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and combustion I.
gases, water pollution from toxic coal combustion waste, and acid deposition to aquatic and
terrestrial ecosystems that will becaused by the project. Whether the Casiño Group was able to prove that the construction and operation of the power
plant will cause grave environmental damage.
1.2. The alleged negative environmental assessment of the project by experts in a report
generated during the social acceptability consultations. The alleged thermal pollution of coastal
waters, air pollution due to dust and
1.3. The alleged admissions of grave environmental damage in the EIS itself of the project. combustion gases, water pollution from
toxic coal combustion waste, and acid
2. Whether the ECC is invalid for lackof signature of Mr. Luis Miguel Aboitiz, as deposition in aquatic and terrestrial
representative of RP Energy, in the Statement of Accountability of the ECC. ecosystems that willbe caused by the
project.
3. Whether the first and second amendments to the ECC are invalid for failure to undergo a
new environmental impact assessment (EIA) because of the utilization of inappropriate EIA As previously noted, the Casiño Group alleged that the construction and operation of the
documents. power plant shall adversely affect the residents of the Provinces of Bataan and Zambales,
particularly, the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo, as
4. Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a well as the sensitive ecological balance of the area. Their claims of ecological damage may be
precondition to the issuanceof an ECC and the lack of its prior issuance rendered the ECC summarized as follows:
invalid.
 FINALS NATRES CASE PAJE vs CASINO 8
1. Thermal pollution of coastal waters. Due to the discharge of heated water from the
operation of the plant, they claim that the temperature of the affected bodies of water will rise As aptly and extensively discussed by the appellate court:
significantly. This will have adverse effects on aquatic organisms. It will also cause the
depletion of oxygen in the water. RP Energy claims that there will beno more than a 3°C Petitioners120 presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of
increase in water temperature but the Casiño Group claims that a 1°C to 2°C rise can already whom are not experts on the CFB technology or even on environmental matters. Petitioners
affect the metabolism and other biological functions of aquatic organisms such asmortality did not present any witness from Morong or Hermosa. Palatino, a former freelance writer and
rate and reproduction. now a Congressman representing the Kabataan Partylist, with a degree of BS Education major
in Social Studies, admitted that he is not a technical expert. Hermoso, a Director of the
2. Air pollution due to dust and combustion gases. While the Casiño Group admits that PREDA foundation which is allegedly involved on environmental concerns, and a member of
Circulating Fluidized Bed (CFB) Coal technology, which will be used in the power plant, is a Greenpeace, is not an expert on the matter subject of this case. He is a graduate of BS
clean technology because it reduces the emission of toxic gases, it claims that volatile organic Sociology and a practicing business director involved in social development and social welfare
compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted under services. Lacbain, incumbent ViceGovernor of the Province of Zambales, anaccounting
the CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. graduate with a Master in Public Administration, was a former BancoFilipino teller,
Carbon monoxide, a poisonous gas, and nitrous oxide, a lethal global warming gas, will also entertainment manager, disco manager, marketing manager and college instructor, and is also
be produced. not an expert on the CFB technology. Lacbain also admitted that he is neither a scientist nor an
expert on matters of the environment.
3. Water pollution from toxic coal combustion waste. The waste from coal combustion or the
residues from burning pose serious environmental risk because they are toxic and may cause Petitioners cited various scientific studies or articles and websites culled from the internet.
cancer and birth defects. Their release to nearby bodies of water will be a threatto the marine However, the said scientific studiesand articles including the alleged Key Observations and
ecosystem of Subic Bay. The project is located in a flood-prone area and is near three Recommendations on the EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit
prominent seismic faults as identified by Philippine Institute of Volcanology and Seismology. "DDDDD") attached to the Petition, were not testified to by an expert witness, and are
The construction of an ash pond in an area susceptible to flooding and earthquake also basically hearsay in nature and cannot be given probative weight. The article purportedly
undermines SBMA’s duty to prioritize the preservation of the water quality in Subic Bay. written by Rex Victor O. Cruz was not even signed by the said author, which fact was
confirmed by Palatino. Petitioners’ witness, Lacbain, admitted that he did not personally
4. Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 conduct any study on the environmental or health effects of a coal-firedpower plant, but only
tons of nitrous oxides and 886 tons of sulfur dioxide per year. These oxides are responsible for attended seminars and conferences pertaining to climate change; and that the scientific studies
acid deposition. Acid deposition directly impacts aquatic ecosystems. It is toxic to fish and mentioned in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit "AAAAA")
other aquatic animals. It will also damage the forests near Subic Bay as well as the wildlife of the Sangguniang Panlalawiganof Zambales is based on what he read on the internet,
therein. This will threaten the stability of the biological diversity of the Subic Bay Freeport seminars he attended and what he heard from unnamed experts in the field of environmental
which was declared as one of the ten priority sites among the protected areas in the Philippines protection.
and the Subic Watershed and Forest Reserve. This will also have an adverse effect on
tourism.119 In his Judicial Affidavit (Exhibit "HHHHH"), Palatino stated that he was furnished by the
concerned residents the Key Observations and Recommendations on the EIS of Proposed RPE
In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to Project by Rex Victor O. Cruz, and that he merely received and read the five (5) scientific
prove the above allegations. studies and articles which challenge the CFB technology. Palatino also testified that: he was
only furnished by the petitioners copies of the studies mentioned in his Judicial Affidavit and
We agree with the appellate court. he did not participate in the execution, formulation or preparation of any of the said
documents; he does not personally know Rex Cruz or any of the authors of the studies
Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB included in his Judicial Affidavit; he did not read other materials about coal-fired power
technology or on environmental matters. These witnesses even admitted on cross-examination plants; he is not aware of the acceptable standards as far as the operation of a coal-fired power
that theyare not competent to testify on the environmental impact of the subject project. What plant is concerned; petitioner Velarmino was the one who furnished him copies of the
is wanting in their testimonies is their technical knowledgeof the project documents in reference to the MOU and some papers related to the case; petitioner Peralta was
design/implementation or some other aspects of the project, even those not requiring the one who e-mailed to him the soft copy ofall the documents [letters (a) to (o) of his Judicial
expertknowledge, vis-à-vis the significant negative environmental impacts which the Casiño Affidavit], except the LGU Resolutions; and he has never been at the actual Power Plant
Group alleged will occur. Clearly, the Casiño Group failed to carry the onusof proving the projectsite. It must be noted that petitioners Velarmino and Peralta were never presented as
alleged significant negative environmental impacts of the project. In comparison, RP Energy witnesses in this case. In addition, Palatino did not identify the said studies but
presented several experts to refute the allegations of the Casiño Group. simplyconfirmed that the said studies were attached to the Petition.
 FINALS NATRES CASE PAJE vs CASINO 9
saturated steam which is further heated to superheated steam; this superheated steam leaves
Indeed, under the rules of evidence, a witness can testify only to those facts which the witness the CFB boiler and expands through a steam turbine; the steam turbine is directly connected to
knows of his orher personal knowledge, that is, which are derived from the witness’ own a generator that turns and creates electricity; after making its way through the steam turbine,
perception. Concomitantly, a witness may not testify on matters which he or she merely the low-pressure steam is exhausted downwards into a condenser; heat is removed from the
learned from others either because said witness was told or read or heard those matters. Such steam, which cools and condenses into water (condensate); the condensate is then pumped
testimony is considered hearsay and may not be received as proof of the truth of what the back through a train of feedwater heaters to gradually increase its temperature beforethis water
witness has learned. This is known as the hearsay rule. Hearsay is notlimited to oral testimony is introduced to the boiler to start the process all over again; and CFB technology has
or statements; the general rule that excludes hearsay as evidence applies to written, as well as advantagesover pulverized coal firing without backend cleanup systems, i.e., greater fuel
oral statements. There are several exceptions to the hearsay rule under the Rules of Court, flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs
among which are learned treatises under Section 46 of Rule 130, viz: have a wider range of flexibility so they can environmentally handle a wider range of fuel
constituents, mainly the constituent sulfur; and is capable of handling different types of coal
"SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subjectof within the range of the different fuelconstituents; since CFB is the newer technology than the
history, law, science, or art is admissible as tending to prove the truth of a matter stated therein PC or stalker fire, it has better environmental production; 50 percent ofthe electric generation
if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of in the United States is still produced by coal combustion; and the CFB absorbs the sulfur
the statement in the treatise, periodical or pamphlet is recognized in his profession or calling dioxide before it is emitted; and there will be a lower percentage of emissions than any other
as expert in the subject." technology for the coal.

The alleged scientific studies mentioned in the Petition cannot be classified as learned In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in
treatises. We cannot take judicial notice of the same, and no witness expert in the FosterWheeler; he was a Manager of Process Technology for Foster Wheeler from 1995 to
subjectmatter of this case testified, that the writers of the said scientific studies are recognized 2007; and he holds a Master of Science degree in Chemical Engineering.He explained that:
in their profession or calling as experts in the subject. CFB boilers will emit PAHs but only in minimal amounts, while BFB will produce higher
PAH emissions; PAH is a natural product of any combustion process; even ordinary burning,
In stark contrast, respondent RP Energy presented several witnesses on the CFB technology. such as cooking or driving automobiles, will have some emissions that are not considered
harmful; it is only when emissions are of a significant level that damage may be caused; a
In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in CFB technology has minimal PAH emissions; the high combustion efficiency of CFB
Mechanical Engineering from Worcester Polytechnic Institute; he is a Consulting Engineer of technology, due to long residence time of particles inside the boiler, leads to minimal
Steam Generators of URS; he was formerly connected with Foster Wheeler where he held the emissions of PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as
positions of site commissioning engineer, testing engineer, instrumentation and controls well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH
engineer, mechanical equipment department manager, director of boiler performance and production; and CFB does not cause emissions beyond scientificallyacceptable levels. He
mechanical design engineering and pulverized coal product director. He explained that: CFB testified, inter alia, that: the CFB technology is used worldwide; they have a 50% percent
stands for Circulating Fluidized Bed; it is a process by which fuel is fed to the lower furnace share of CFB market worldwide; and this will be the first CFB by Foster Wheeler in the
where it is burned in an upward flow of combustion air; limestone, which is used as sulfur Philippines; Foster Wheeler manufactures and supplies different type[s] of boilers including
absorbent, is also fed to the lower furnace along with the fuel; the mixture offuel, ash, and the BFB, but CFB is always applied on burning coal, so they do not apply any BFB for coal firing;
boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone CFB has features which have much better combustion efficiency, much lower emissions and it
separator; the heavier particles which generally consist of the remaining uncombusted fuel and is more effective as a boiler equipment; the longer the coal stays inthe combustion chamber,
absorbent material are separated in the cyclone separator and are recirculated to the lower the better it is burned; eight (8) seconds is already beyond adequate but it keeps a margin; in
furnace to complete the combustion of any unburned particles and to enhance SO2 capture by CFB technology, combustion technology is uniform throughout the combustion chamber; high
the sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in the electrostatic velocity is used in CFB technology, that is vigorous mixing or turbulence; turbulence is
precipitator; furnace temperature is maintained in the range of 800° to 900° C by suitable heat needed to get contact between fuel and combustion air; and an important feature of CFB is air
absorbing surface; the fuel passes through a crusher that reduces the size to an appropriate size distribution.
prior to the introduction into the lower furnace along with the limestone; the limestone is used
as a SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an inert and In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary
stable material; air fans at the bottom of the furnace create sufficient velocity within the steam Engineer and Environmental Planner in the Philippines; he is also a chartered Professional
generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is also Engineer inAustralia and a member of the colleges of environmental engineers and chemical
introduced above the bed to facilitate circulation and complete combustion of the mixture; the engineers of the Institution of Engineers (Australia); he completed his Bachelor in Chemical
combustion process generates heat, which then heats the boiler feedwater flowing through Engineering in 1970, Master of Environmental Engineering in 1972 and Doctor of
boiler tube bundles under pressure; the heat generated in the furnace circuit turns the water to Environmental Engineering in 1974; he also graduated from the University of Sydney Law
 FINALS NATRES CASE PAJE vs CASINO 10
School with the degree of Master of Environmental Law in 2002 and PhD in Law from A: Living organisms have proven time and again that they are very adaptable to changes in the
Macquarie University in 2007. He explained in his Judicial Affidavit that: the impacts environment. Living organisms have been isolated in volcanic vents under the ocean living on
identified and analyzed in the EIA process are all potential or likely impacts; there are a larger the acidic nutrient soup of sulfur and other minerals emitted by the volcano to sub-freezing
number of EIA techniques for predicting the potential environmental impacts; it is important temperature in Antarctica. Asa general rule, metabolism and reproductive activity [increase]
to note that all those methods and techniques are only for predicting the potential with temperature until a maximum is reached after which [they decline]. For this reason,
environmental impacts, not the real impacts; almost all environmental systems are non-linear during winter, animals hibernate and plants become dormant after shedding their leaves. It is
and they are subject to chaotic behavior that even the most sophisticated computer could not on the onset of spring that animals breed and plants bloom when the air and water are warmer.
predict accurately; and the actual or real environmental impact could only be established when At the middle of autumn when the temperature drops to single digit, whales, fish, birds and
the project is in actual operation. He testified, inter alia, that: the higher the temperature the other living organisms, which are capable of migrating, move to the other end of the globe
higher the nitrous oxide emitted; in CFB technology, the lower the temperature, the lower is where spring is just starting. In the processes of migration, those migratory species have to
the nitrogen oxide; and it still has a nitrogen oxide but not as high as conventional coal; the cross the tropics where the temperature is not just one or two degrees warmer but 10 to 20
CFB is the boiler; from the boiler itself,different pollution control facilities are going to be degrees warmer. When discussing the impact of 1 to 2 degrees temperature change and its
added; and for the overall plant with the pollution control facilities, the particulate matters, impact on the ecosystem, the most important factors to consider are – (1) Organism Type –
nitrogen oxide and sulfur dioxide are under control. (Citations omitted)121 specifically its tolerance to temperature change (mammals have higher tolerance); (2) Base
Temperature – it is the temperature over the optimum temperature such that an increasewill
We also note that RP Energy controverted in detail the afore-summarized allegations of the result in the decline in number of the organisms; (3) Mobility or Space for Migration (i.e., an
Casiño Group on the four areas of environmental damage that will allegedly occur upon the aquarium with limited space or an open ocean that the organism can move to a space more
construction and operation of the power plant: suited to [a] specific need, such as the migratory birds); and (4) Ecosystem Complexity and
Succession. The more complex the ecosystem the more stable it is as succession and
1. On thermal pollution of coastal waters. adaptation [are] more robust.

As to the extent of the expected rise in water temperature once the power plant is operational, Normally, the natural variation in water temperature between early morning to late afternoon
Ms. Mercado stated in her JudicialAffidavit thus: could be several degrees (four to five degrees centigrade and up to ten degrees centigrade on
seasonal basis). Therefore, the less than one degree centigrade change predicted by the GHD
Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy? modeling would have minimal impact.123

A: The thermal dispersion modeling results show that largest warming change (0.95°C above On cross-examination, Dr. Ouano further explained—
ambient) is observed in the shallowest (5 m) discharge scenario. The warmest surface
temperature change for the deepest (30 m) scenario is 0.18°C. All the simulated scenarios ATTY. AZURA:
comply with the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m
mixing zone. The proposed power plant location is near the mouth of Subic Bay, thus the tidal x x x When you say Organism Type – you mentioned that mammals have a higher tolerance
currents influence the behavior of thermal discharge plume. Since the area is well-flushed, for temperature change?
mixing and dilution of the thermal discharge is expected.
DR. OUANO:
It also concluded that corals are less likely to be affected by the cooling water discharge as
corals may persist in shallow marine waterswith temperatures ranging from 18°C to 36°C. The Yes.
predicted highest temperature of 30.75°C, from the 0.95°C increase in ambient in the
shallowest (5 m) discharge scenario, is within this range.122 ATTY. AZURA:

In the same vein, Dr. Ouano stated in his Judicial Affidavit: What about other types of organisms, Dr. Ouano? Fish for example?

Q: In page 41, paragraph 99 of the Petition, it was alleged that: "x x x a temperature change of DR. OUANO:
1°C to 2°C canalready affect the metabolism and other biological functions of aquatic
organisms such as mortality rate and reproduction." What is your expert opinion, if any, on Well, mammals have high tolerance because mammals are warm[- ]blooded. Now, when it
this matter alleged by the Petitioners? comes to cold[-]blooded animals the tolerance is much lower. But again when you are
considering x x x fish [e]specially in open ocean you have to remember that nature by itself is
x x x very brutal x x x where there is always the prey-predator relationship. Now, most of the
 FINALS NATRES CASE PAJE vs CASINO 11
fish that we have in open sea [have] already a very strong adaptability mechanism.And in fact, ATTY AZURA:
Kingman back in 1964 x x x studied the coal reefaround the gulf of Oman where the
temperature variation on day to day basis varied not by 1 degree to 2 degrees but by almost 12 In this case, Dr. Ouano, with respectto this project and the projected temperature change, will
degrees centigrade. Now, in the Subic Bay area which when you’re looking at it between the corals in Subic Bay be affected?
daytime variation, early dawn when it is cold, the air is cold, the sea temperature, sea water is
quite cold. Then by 3:00 o’clock in the afternoon it starts to warm up. Sothe variation [in the] DR. OUANO:
Subic Bay area is around 2 to 4 degrees by natural variation from the sun as well as from the
current that goes around it. So when you are talking about what the report has said of around 1 As far as the outlet is concerned, they have established it outside the coral area. By the time it
degree change, the total impact x x x on the fishes will be minimal. x x x reaches the coral area the temperature variation, as per the GHD study is very small, it[’]s
almost negligible.
ATTY. AZURA:
ATTY AZURA:
x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for
temperature variation, are still very adaptable. What about other sea life, Dr. Ouano, for Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking
example, sea reptiles? about?

DR. OUANO: DR. OUANO:

That’s what I said. The most sensitive part of the marine ecology is physically the corals If you are talking about a thermometer, you might be talking about, normally about .1 degrees
because corals are non-migratory, they are fix[ed]. Second[ly] x x x corals are also highly centigrade. That’sthe one that you could more or less ascertain. x x x
dependent on sunlight penetration. If they are exposed out of the sea, they die; if theyare so
deep, they die. And that is why I cited Kingman in his studies of coral adaptability [in] the sea ATTY. AZURA:
ofOman where there was a very high temperature variation, [they] survived.
Dr. Ouano, you mentioned in youranswer to the same question, Question 51, that there is a
ATTY. AZURA: normal variation in water temperature. In fact, you said there is a variation throughout the day,
daily and also throughout the year, seasonal. Just to clarify, Dr. Ouano. When the power plant
Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay? causes the projected temperature change of 1 degree to 2 degrees Celsius this will be in
addition to existing variations? What I mean, Dr. Ouano, just so I can understand, how will
DR. OUANO: that work? How will the temperature change caused by the power plant work with the existing
variation? DR. OUANO:
Not in Subic Bay but I have reviewedthe temperature variation, natural temperature variation
from the solar side, the days side as well as the seasonal variation. There are two types of There is something like what we call the zonal mixing. This is an area of approximately one or
variation since temperatures are very critical. One is the daily, which means from early two hectares where the pipe goes out, the hot water goes out. So that x x x, we have to accept
morning to around 3:00 o’clock, and the other one is seasonal variation because summer, x x x that [throughout it] the zone will be a disturb[ed] zone. After that one or two hectares
December, January, February are the cold months and then by April, May we are having warm park the water temperature is well mixed [so] that the temperature above the normal existing
temperature where the temperature goes around 32-33 degrees; Christmas time, it drops to variation now practically drops down to almost the normal level.124
around 18 to 20 degrees so it[']sa variation of around seasonal variation of 14 degrees although
some of the fish might even migrate and that is why I was trying to put in corals because they 2. On air pollution due todust and combustion gases.
are the ones that are really fix[ed]. They are not in a position to migrate in this season.
To establish that the emissions from the operation of the power plant would be compliant with
ATTY. AZURA: the standards under the Clean Air Act,125 Ms. Mercado stated in her Judicial Affidavit thus:

To clarify. You said that the most potentially sensitive part of the ecosystem would be the 271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP
corals. DR. OUANO: Energy?

Or threatened part because they are the ones [that] are not in a position to migrate. A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the
following emissions,which [are] fully compliant with the standards set by DENR:
 FINALS NATRES CASE PAJE vs CASINO 12

Predicted GLC126 for 1-hr ATTY. AZURA:

averaging period National Ambient Air Quality
Guideline Values I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2,
SO2 45.79 µg/Nm3 340 µg/Nm3 R3 and so forth and on page 188 of this same document, Annex "9-Mercado," there is a list
NO2 100.8 µg/Nm3 260 µg/Nm3 identifying these receptors, for example, Receptor 6, Your Honor, appears to have been
CO 10 µg/Nm3 35 µg/Nm3 located in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that mean
that if upset condition[s] were to occur, the Olongapo City Poblacion will be affected by the
Predicted GLC for 8-hr averaging period National Ambient Air Quality emissions? MS. MERCADO:
Guideline Values
CO 0.19 mg/ncm 10 µg/Nm3 All it means is that there will be higher emissions and a higher ground concentration. But you
might want to alsopay attention to the "y axis," it says there GLC/CAA [Ground Level
Predicted GLC for 24-hr averaging period National Ambient Air Quality Concentration/Clean Air Act limit]. So it means that even under upset conditions… say for
Guideline Values R6, the ground level concentration for upset condition is still around .1 or 10% percent only of
SO2 17.11 µg/Nm3 180 µg/Nm3 the Clean Air Act limit. So it’s still much lower than the limit.
NO2 45.79 µg/Nm3 150 µg/Nm3
ATTY. AZURA:
Predicted GLC for 1-yr averaging period National Ambient Air Quality
Guideline Values But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,]
SO2 6.12 µg/Nm3 80 µg/Nm3 emissionswould increase in the Olongapo City Poblacion?
NO2 No standard ---
CO No standard --- MS. MERCADO:
272. Q: What other findings resulted from the Air Dispersion Modeling, if any?
Not emissions will increase. The emissions will be the same but the ground level
A: It also established that the highest GLC to CleanAir Act Standards ratio among possible concentration, the GLC, will be higher if you compare normal versus upset. But even if it[’]s
receptors was located 1.6 km North NorthEast ("NNE") of the Power Plant Project. Further, under upset conditions, it is still only around 10% percent of the Clean Air Act Limit.
this ratio was valued only at 0.434 or less than half of the upper limit set out in the Clean Air
Act. This means that the highest air ambient quality disruption will happen only 1.6 km NNE xxxx
of the Power Plant Project, and that such disruption would still be compliant with the
standards imposed by the Clean Air Act.127 J. LEAGOGO:

The Casiño Group argued, however, that, as stated inthe EIS, during upset conditions, So you are trying to impress upon this Court that even if the plant is in an upset condition, it
significant negative environmental impact will result from the emissions. This claim was will emit less than what the national standards dictate?
refuted by RP Energy’s witness during cross-examination:
MS. MERCADO:
ATTY. AZURA:
Yes, Your Honor.128
If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the
same document, the August 2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, With respect to the claims that the powerplant will release dangerous PAHs and CO, Engr.
the first table, the one on top appears to show a comparison in normal and upset conditions. I Sarrki stated in his Judicial Affidavit thus:
noticed, Ms. Mercado, that the black bars are much higher than the bars in normal condition.
Can you state what this means? Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic
Compounds ("VOC") specifically Polycyclic Aromatic Hydrocarbon ("PAH") will be emitted
MS. MERCADO: even by CFB boilers. What can you say about this?

It means there are more emissions that could potentially be released when it is under upset A: Actually, the study cited by the Petitioners does not apply to the present case because it
condition. does not refer to CFB technology. The study refers to a laboratory-scale tubular Bubbling
 FINALS NATRES CASE PAJE vs CASINO 13
Fluidized Bed ("BFB") test rig and not a CFB. CFB boilers will emit PAHs but only in A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as
minimal amounts. Indeed, a BFB will produce higher PAH emissions. cooking or driving automobiles, will have some emissions that are not considered harmful. It
is only when emissions are of a significant level that damage may be caused.
xxxx
Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH
Q: Why can the study cited by Petitioners not apply in the present case? emissions. The high combustion efficiency of CFB technology, due to the long residence time
of particles inside the boiler, leads to the minimal emissions of PAH. Furthermore,other
A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not factors such as increase in the excess air ratio, decrease in Ca/S, as well as decrease in the
replicate the staged-air combustion process of the CFB that RP Energy will use. Thisstaged-air sulfur and chlorine contents of coal will likewise minimize PAH production. CFB does not
process includes the secondary air. Injecting secondary air into the system will lead to more cause emissions beyond scientifically acceptable levels, and we are confident it will not result
complete combustion and inhibits PAH production. There is a study entitled "Polycyclic in the damage speculated by the Petitioners.129
Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System" byKunlei Liu,
Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of Hazardous Materials B84 3. On water pollution from toxic coal combustion waste.
(2001) where the findings are discussed.
With regard to the claim that coal combustion waste produced by the plant will endanger the
Also, the small-scale test rig utilized in the study does not simulate the process conditions health of the inhabitants nearby, Dr. Ouano stated in his Judicial Affidavit thus:
(hydrodynamics, heat transfer characteristics, solid and gas mixing behavior, etc.) seen in a
large scale utility boiler, like those which would be utilized by the Power Plant Project. Q: In page 43, paragraph 110 of the Petition, it was alleged that: "[s]olid coal combustion
waste is highly toxic and is said to cause birth defects and cancer risks among others x x x."
xxxx What is your expert opinion, if any, on this matter alleged by the Petitioners?

Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce A: Coal is geologically compressed remains of living organisms that roamed the earth several
PAH production? million years ago. In the process of compression, some of the minerals in the soil, rocks or
mud, the geologic media for compression, are also imparted into the compressed remains. If
A: Increase in the excess air ratio will also minimizePAH production. Furthermore, decrease the compressing media of mud, sediments and rocks contain high concentration of mercury,
in Calcium to Sulfur moral ratio ("Ca/S"), as well as decrease in the sulfur and chlorine uranium, and other toxic substances, the coal formed will likewise contain high concentration
contents of coal will likewise minimize PAH production. This is also based on the study of those substances. If the compressing materials have low concentration of those substances,
entitled "Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC then the coal formed will likewise have low concentration of those substances. If the coal does
System" by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley. not contain excessive quantities of toxic substances, the solid residues are even used in
agriculture to supply micronutrients and improve the potency of fertilizers. It is used freely as
In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and a fill material in roads and other construction activities requiring large volume of fill and as
chlorine contents minimizing PAH production. Also, due to optimum conditions for the in- additive in cement manufacture. After all, diamonds that people love to hang around their
furnace SO2capture, the Ca/S will be relatively low, decreasing PAH production. necks and keep close to the chest are nothing more than the result of special geologic action, as
those in volcanic pipes on coal.130
Q: In paragraph 104 of the Petition, it was alleged that "Carbon monoxide (CO), a poisonous,
colorless and odorless gas is also produced when there is partial oxidation or when there is not RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the
enough oxygen (O2) to form carbon dioxide (CO2)." What can you say about this? waste generated by the plant will be properly handled, to wit:

A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In 4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and
fact, I understand that the projected emissions level of the Power Plant Project compl[ies]with fly ash. Bottom ash consists oflarge and fused particles that fall to the bottom of the furnace
the International Finance Corporation ("IFC") standards. Furthermore, characteristics of CFB and mix with the bed media.Fly ash includes finegrained and powdery particles that are carried
technology such as long residence time, uniform temperature and high turbulence provide an away by flue gas into the electrostatic precipitator, which is then sifted and collected. These
effective combustion environment which results [in] lower and safer CO emissions. by-products are non-hazardous materials. In fact, a coal power plant’s Fly Ash, Bottom Ash
and Boiler Slag have consequent beneficial uses which "generate significant environmental,
Q: I have no further questions for youat the moment. Is there anything you wish to add to the economic, and performance benefits." Thus, fly ash generated during the process will be sold
foregoing? and transported to cement manufacturing facilities or other local and international industries.
 FINALS NATRES CASE PAJE vs CASINO 14
4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal
shall be properly handled and stored. What is the engineering side of the project? You said UST is floating.

4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a DR. OUANO:
series of screw and chain conveyors and bucket elevator to the bottom ash silo. The collection
and handling system is enclosed to prevent dust generation. Discharge chutes will be installed The foundation, that means to say you don’t break…
at the base of the bottom ash silo for unloading. Open trucks will be used to collect ash
through the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash J. LEAGOGO:
cells. A portion of the bottom ash will be reused as bed materialthrough the installation of a
bed media regeneration system (or ash recycle). Recycled bottom ash will be sieved using a Floating foundation. What about this, what kind of foundation?
vibrating screen and transported to a bed material surge bin for re-injection into the boiler.
DR. OUANO:
4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection
hopper using compressed air and transported in dry state to the fly ash silo. Two discharge It will now depend on their engineering design, the type of equipment…
chutes will be installed at the base of the fly ash silo. Fly ash can either be dry-transferred
through a loading spout into an enclosed lorry or truck for selling, re-cycling, or wet- J. LEAGOGO:
transferred through a wet unloader into open dump trucks and transported to ash cells. Fly ash
discharge will operate in timed cycles, with an override function to achievecontinuous No, but did you read it in their report?
discharge if required. Fly ash isolation valves in each branch line will prevent leakage and
backflow into non-operating lines. DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the
equipment supplier.
4.1.53 Approximately 120,000m² will be required for the construction of the ash cell. Ash will
be stacked along the sloping hill, within a grid of excavations (i.e. cells) with a 5m J. LEAGOGO:
embankment. Excavated soils will be used for embankment construction and backfill. To
prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum depth So it[’]s not yet there?
of400mm will be laid at the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil
backfill will be applied to immobilize ash and prevent migration via wind. Ash cell walls will DR. OUANO:
be lined with high-density polyethylene to prevent seepage. This procedure and treatment
method is in fact suitable for disposal of toxic and hazardous wastes although fly ash is not It[’]s not yet there in the site but it is also covered inour Building Code what are the intensities
classified as toxic and hazardous materials.131 of earthquakes expected of the different areas in the Philippines.

Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified J. LEAGOGO:
thus:
Have you checked our geo-hazard maps in the Philippines to check on this project site?
J. LEAGOGO:
DR. OUANO:
In terms of fault lines, did you study whether this project site is in any fault line?
Yes. It is included there in the EIA Report.
DR. OUANO:
J. LEAGOGO:
There are some fault linesand in fact, in the Philippines it is very difficult to find an area
except Palawan where there is no fault line within 20 to 30 [kilometers]. But then fault lines as It[’]s there?
well as earthquakes really [depend] upon your engineering design. I mean, Sto. Tomas
University has withstood all the potential earthquakes we had in Manila[,] even sometimes DR. OUANO:
it[’]s intensity 8 or so because the design for it back in 1600 they are already using what we
call floating foundation. So if the engineering side for it[,] technology is there to withstand the It[’]s there.132
expected fault line [movement]. J. LEAGOGO:
 FINALS NATRES CASE PAJE vs CASINO 15
4. On acid deposition in aquatic and terrestrial ecosystems. It will?

Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus: DR. OUANO:

Q: In page 44, paragraph 114 of the Petition, it was alleged that "the coalfired power plant will Because the acid concentration is so dilute[d] so that it is not going to cause acid rain.
release 1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per
year. These oxides are the precursors to the formation of sulfuric acid and nitric acid which are J. LEAGOGO:
responsible for acid deposition." Whatis your expert opinion on this matter alleged by the
Petitioners? The acid concentration is so diluted that it will not cause acid rain?

A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial DR. OUANO:
activities and geologic activities as well as from human activities such as power plants and
fertilizer usage in agriculture. SO2 is also found in air, water and soil from bacterial, geologic Yes .
and human activities. NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle
to widely redistribute and recycle those essential chemicals for use by plants. Without the NO2 J. LEAGOGO:
and SO2 in the air, plant and animal life would be limited to small areas of this planet where
nitrogen and sulfur are found in abundance. With intensive agricultural practices, nitrogen and What do you mean it[’]s so diluted? How will it be diluted?
sulfur are added in the soil as fertilizers.
DR. OUANO:
Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those
values set in the air quality standards. NO2 and SO2 in the air in concentrations lower than Because it[’]s going to be mixed withthe air in the atmosphere; diluted in the air in the
those set in the standards have beneficial effect to the environment and agriculture and are atmosphere. And besides this 886 tons, this is not released in one go, it is released almost
commonly known as micronutrients.133 throughout the year.

On clarificatory questions from the appellate court, the matter was further dissected thus: J. LEAGOGO:

J. LEAGOGO: You also answered in Question No. 61, "acid raintakes place when the NO2 AND SO2
concentration are excessive." So whendo you consider it as excessive?
x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that
witness answered, yes, itwill produce 886 tons of sulfur dioxide per year. And he also DR. OUANO:
answered yes, that these oxides are the precursors to the formation of sulfuric acid and nitric
acid. Now my clarificatory question is, with this kind of releases there will be acid rain? That is something when you are talking about acid…

DR. OUANO: J. LEAGOGO:

No. In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as
excessive?
J. LEAGOGO:
DR. OUANO:
Why?
It is in concentration not on tons weight, Your Honor.
DR. OUANO:
J. LEAGOGO:
Because it[’]s so dilute[d].
In concentration?
J. LEAGOGO:
DR. OUANO:
 FINALS NATRES CASE PAJE vs CASINO 16

In milligrams per cubic meter, milligrams per standard cubic meter. DR. OUANO:

J. LEAGOGO: Yes. So that is the factor of x x x safety that we have.134

So being an expert, whatwill be the concentration of this kind of 1,888 tons of nitrous oxide? Apart from the foregoing evidence, wealso note that the above and other environmental
What will be the concentration in terms of your…? concerns are extensively addressed in RP Energy’s Environmental Management Plan or
Program(EMP). The EMP is "a section in the EIS that details the prevention, mitigation,
DR. OUANO: compensation, contingency and monitoring measures to enhance positive impacts and
minimize negative impacts and risks of a proposed project or undertaking."135 One of the
If the concentration is in excess ofsomething like 8,000 micrograms per standard cubic meters, conditions of the ECC is that RP Energy shall strictly comply with and implement its approved
then there isalready potential for acid rain. EMP. The Casiño Group failed to contest, with proof, the adequacy of the mitigating measures
stated in the aforesaid EMP.
J. LEAGOGO:
In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the
I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide? alleged significant environmental damage that will be caused by the project, the appellate
court relied mainly on the testimonies of experts, which we find to be in accord withjudicial
DR. OUANO: precedents. Thus, we ruled in one case:

Yes . Although courts are not ordinarily bound by testimonies of experts, they may place whatever
weight they choose upon such testimonies in accordance with the facts of the case. The
J. LEAGOGO: relative weight and sufficiency of expert testimony is peculiarly within the province of the trial
court to decide, considering the ability and character of the witness, his actions upon the
In terms of concentration, what will that be? witness stand, the weight and process of the reasoning by which he has supported his opinion,
his possible bias in favor of the side for whom he testifies,the fact that he is a paid witness, the
DR. OUANO: relative opportunities for study and observation of the matters about which he testifies, and
any other matters which serve to illuminate his statements. The opinion of the expert may not
In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the be arbitrarily rejected; it isto be considered by the court in view of all the facts and
time when acid rain will start [is when the concentration gets] around 8,000 milligrams per circumstances in the case and when common knowledge utterly fails, the expert opinion may
standard cubic meters. So we have 19 compared to 8,000. So weare very, very safe. be given controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the
expert witness and the evaluation of his testimony is left to the discretion of the trial court
J. LEAGOGO: whose ruling thereupon is not reviewable inthe absence of an abuse of that discretion.136

What about SO2? Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the
alleged grave environmental damage which will be caused by the construction and operation
DR. OUANO: of the power plant.

SO2, we are talking about ... youwon’t mind if I go to my codigo. For sulfur dioxide this acid In another vein, we, likewise, agree with the observationsof the appellate court that the type of
rain most likely will start at around 7,000 milligrams per standard cubic meter but then … coal which shall be used in the power plant has important implications as to the possible
sorry, it[’]s around 3,400 micrograms per cubic meter. That is the concentration for sulfur significant negative environmental impacts of the subject project.137 However, there is no
dioxide, and in our plant it will be around 45 micrograms per standard cubic meter. So the acid coal supply agreement, as of yet, entered into by RP Energy with a third-party supplier. In
rain will start at 3,400 and the emission is estimated here to result to concentration of 45.7 accordance with the terms and conditions of the ECC and in compliance with existing
micrograms. environmental laws and standards, RP Energy is obligated to make use of the proper coal type
that will not cause significant negative environmental impacts.
J. LEAGOGO:
The alleged negative environmental
That is what GHD said in their report. assessment of the project by experts in a
 FINALS NATRES CASE PAJE vs CASINO 17
report generated during the social ii. The EIA neglected to include other forests in the Freeport in its scope and that there were
acceptability consultations no specific details on the protection of the endangered flora and endemic fauna in the area.
Soil, grassland, brush land, beach forests and home gardens were also apparently not included
The Casiño Group also relies heavily on a report on the social acceptability process of the in the study.
power plant project to bolster itsclaim that the project will cause grave environmental damage.
We purposely discuss this matter in this separate subsection for reasons which will be made iii. The sampling methods used inthe study were limited and insufficient for effective long-
clear shortly. term monitoring of surface water, erosion control and terrestrial flora and fauna.

But first we shall present the pertinent contents of this report. The specialists also discussed the potential effects of an operational coalfired power plant [on]
its environs and the community therein. Primary among these were the following:
According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social
acceptabilitypolicy consultations with different stakeholders on RP Energy’s proposed 600 i. Formation of acid rain, which would adversely affect the trees and vegetation in the area
MW coal plant project at the Subic Bay Exhibition and Convention Center. The results thereof which, in turn, would diminish forest cover. The acid rain would apparently worsen the acidity
are contained in a document prepared by SBMA entitled "Final Report: Social Acceptability of the soil in the Freeport.
Process for RP Energy, Inc.’s 600-MW Coal Plant Project" (Final Report). We notethat
SBMA adopted the Final Report as a common exhibit with the Casiño Group in the course of ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulationof
the proceedings before the appellate court. contaminants and toxic materials which would eventually lead to the overall reduction of
marine productivity.
The Final Report stated that there was a clear aversion to the concept of a coal-fired power
plant from the participants. Their concerns included environmental, health, economic and iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy
socio-cultural factors. Pertinent to this case is the alleged assessment, contained in the Final metals suchas mercury and lead to the surrounding region, which would adversely affect the
Report, of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), health of the populace in the vicinity.
Chancellor of the University of the Philippines, Los Baños and a forest ecology expert, (2) Dr.
Visitacion Antonio, a toxicologist, who related information as to public health; and (3) Andre V. FINDINGS
Jon Uychiaco, a marine biologist.
Based on their analyses of the subject matter, the specialists recommended that the SBMA re-
The Final Report stated these experts’alleged views on the project, thus: scrutinize the coal-fired power plant project with the following goals in mind:

IV. EXPERTS’ OPINION i. To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and
development plans, including its Protected Area Management Plan;
xxxx
ii. To properly determine actual and potential costs and benefits;
The specialists shared the judgment that the conditions were not present to merit the operation
of a coal-fired power plant,and to pursue and carry out the project with confidence and iii. To effectively determine the impacts on environment and health; and
assurance that the natural assets and ecosystems within the Freeport area would not be unduly
compromised, or that irreversible damage would not occur and that the threats to the flora and iv. To ensure a complete and comprehensive impacts zone study.
fauna within the immediate community and its surroundings would be adequately addressed.
The three experts were also of the same opinion that the proposed coal plant project would The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis
pose a wide range of negative impacts on the environment, the ecosystems and human Of The Proposed Coal Plant Project Relative To Each Stakeholder Which Should Include The
population within the impact zone. Environment As Provider Of Numerous Environmental Goods And Services.

The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by They also recommended an Integrated/Programmatic Environmental Impact Assessmentto
RPEI to be incomplete and limited in scope based on the following observations: accurately determine the environmental status of the Freeport ecosystem as basis and reference
in evaluating future similar projects. The need for a more Comprehensive Monitoring System
i. The assessment failed to include areas 10km. to 50km. from the operation site, although for the Environment and Natural Resourceswas also reiterated by the panel.138
according tothe panel, sulfur emissions could extend as far as 40-50 km.
 FINALS NATRES CASE PAJE vs CASINO 18
Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP acidity may result from acid rain that may form in the area which could further make it harder
Energy relative to the project: for the plants to grow in the area that in turn could exacerbate the already severe erosion in the
area. 10. There is a need to review the proposalto ensure that the proposed project is consistent
Key Observations and Recommendations on the EIS of Proposed RPE Project with the vision for the Freeport as enunciated in the SBMA Master Plan and the Protected
Area Management Plan. This will reinforce the validity and legitimacy of these plans as a
Rex Victor O. Cruz legitimate framework for screening potential locators in the Freeport. Itwill also reinforce the
trust and confidence of the stakeholders on the competence and authority of the SBMA that
Based on SBMA SAP on December 7-9, 2011 would translate in stronger popular support to the programs implemented in the Freeport.

1. The baseline vegetation analysis was limited only within the project site and its immediate 11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the
vicinity. No vegetation analysis was done in the brushland areas in the peninsula which is minimum amount and that adequate funds will be provided by the proponent as necessary
likely to be affected in the event acid rain forms due to emissions from the power plant. beyond the minimum amounts. Furthermore the basis for the amounts allocated for the items
(public liability and rehabilitation) in Trust Fund and in EGF (tree planting and landscaping,
2. The forest in the remaining forests inthe Freeport was not considered as impact zone as artificial reef establishment) must be clarified. The specific damages and impacts that will be
indicated by the lack ofdescription of these forests and the potential impacts the project might covered by the TF and EGF must also be presented clearly at the outset to avoid protracted
have on these forests. This appears to be a key omission in the EIS considering that these negotiations in the event of actual impacts occurring in the future.
forests are well within 40 to 50 km away from the site and that there are studies showing that
the impacts of sulphur emissions can extend as far as 40 to 50 km away from the source. 12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of
measurement. More importantly, the proposed method of measurement (sampling transect)
3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed while adequate for estimating the diversity of indices for benchmarking is not sufficient for
project site. There will be a need to make sure that these species are protected from being long[-]term monitoring. Instead, long[-]term monitoringplots (at least 1 hectare in size) should
damaged permanently in wholesale. Appropriate measures such as ex situconservation and be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.
translocation if feasible must be implemented.
13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the
4. The Project site is largely in grassland interspersed with some trees. These plants if affected project site, it will be useful not only for mitigating and avoiding unnecessary adverse impacts
by acid rain or by sulphur emissions may disappear and have consequences on the soil ofthe project but also for improving management decisions if long[-]term monitoring plots for
properties and hydrological processes in the area. Accelerated soil erosion and increased the remaining natural forests in the Freeport are established. These plots will also be useful for
surface runoff and reduced infiltration of rainwater into the soil. the study of the dynamic interactions of terrestrial flora and fauna with climate change,
farming and other human activities and the resulting influences on soil, water, biodiversity,
5. The rest of the peninsula is covered with brushland but were never included as part of the and other vital ecosystem services in the Freeport.139
impact zone.
We agree with the appellate court that the alleged statements by these experts cannot be given
6. There are home gardens along the coastal areas of the site planted to ornamental and weight because they are hearsay evidence. None of these alleged experts testified before the
agricultural crops which are likely to be affected by acid rain. appellate court to confirm the pertinent contents of the Final Report. No reason appears in the
records of this case as to why the Casiño Group failed to present these expert witnesses.
7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be
affectedalso by acid rain. We note, however, that these statements, on their face, especially the observations of Dr. Cruz,
raise serious objections to the environmental soundness of the project, specifically, the EIS
8. There are no Environmentally Critical Areas within the 1 km radius from the project site. thereof.It brings to fore the question of whether the Court can, on its own, compel the
However, the OlongapoWatershed Forest Reserve, a protected area is approximately 10 testimonies of these alleged experts in order to shed light on these matters in view of the
kmsouthwest of the projectsite. Considering the prevailing wind movement in the area, this rightat stake— not just damage to the environment but the health, well-being and,ultimately,
forest reserve is likely to be affected by acid rain if it occurs from the emission of the power the livesof those who may be affected by the project.
plant. This forest reserve is however not included as partof the potential impact area.
The Rules of Procedure for Environmental Cases liberally provide the courts with means and
9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with methods to obtain sufficient information in order to adequately protect orsafeguard the right to
moderate to severe erosion potential. The sparse vegetation cover in the vicinity of the a healthful and balanced ecology. In Section 6 (l)140 of Rule 3 (Pre-Trial), when there is a
projectsite is likely a result of the highly acidic soil and the nutrient deficiency. Additional failure to settle, the judge shall, among others, determine the necessity of engaging the
 FINALS NATRES CASE PAJE vs CASINO 19
services of a qualified expert as a friend of the court (amicus curiae). While, in Section 12141 for improvement in the operation and monitoring of the project,but they do not clearly show
of Rule 7 (Writ of Kalikasan), a party may avail of discovery measures: (1) ocular inspection why such recommendations are indispensable for the project to comply with existing
and (2) production or inspection of documents or things. The liberality of the Rules in environmental laws and standards, or how non-compliance with such recommendations will
gathering and even compelling information, specifically with regard to the Writ of Kalikasan, lead to an environmental damage of the magnitude contemplatedunder the writ of kalikasan.
is explained in this wise: [T]he writ of kalikasanwas refashioned as a tool to bridge the gap Again, these statements do not state with sufficient particularity how the EMP in the EIS
between allegation and proof by providing a remedy for would-be environmental litigants to failed to adequately address these concerns.
compel the production of information within the custody of the government. The writ would
effectively serve as a remedy for the enforcement of the right to information about the Fourth, because the reason for the non-presentation of the alleged expert witnesses does not
environment. The scope of the fact-finding power could be: (1) anything related to the appear on record, we cannot assume that their testimonies are being unduly suppressed.
issuance, grant of a government permit issued or information controlled by the government or
private entity and (2) [i]nformation contained in documents such as environmental compliance By ruling that we do not find a sufficiently compelling reason to compel the taking of the
certificate (ECC) and other government records. In addition, the [w]rit may also be employed testimonies of these alleged expert witnesses in relation to their serious objections to the
to compel the production of information, subject to constitutional limitations. This function is power plant project, we do not foreclose the possibility that their testimonies could later on be
analogous to a discovery measure, and may be availed of upon application for the writ.142 presented, in a proper case, to more directly, specifically and sufficientlyassail the
environmental soundness of the project and establish the requisite magnitude of actualor
Clearly, in environmental cases, the power toappoint friends of the court in order to shed light threatened environmental damage, if indeed present. After all, their sense ofcivic duty may
on matters requiring special technical expertise as well as the power to order ocular well prevail upon them to voluntarily testify, if there are truly sufficient reasons tostop the
inspections and production of documents or things evince the main thrust of, and the spirit project, above and beyond their inadequate claims in the Final Report that the project should
behind, the Rules to allow the court sufficient leeway in acquiring the necessary information to not be pursued. As things now stand,however, we have insufficient bases to compel their
rule on the issues presented for its resolution, to the end that the right toa healthful and testimonies for the reasons already proffered.
balanced ecology may be adequately protected. To draw a parallel, in the protection of the
constitutional rights of an accused, when life or liberty isat stake, the testimonies of witnesses The alleged admissions of grave
may be compelled as an attribute of the Due Process Clause. Here, where the right to a environmental damage in the EIS of the
healthful and balanced ecology of a substantial magnitude is at stake, should we not tread the project.
path of caution and prudence by compelling the testimonies of these alleged experts?
In their Omnibus Motions for Clarification and Reconsideration before the appellate court and
After due consideration, we find that, based on the statements in the Final Report, there is no Petition for Review before thisCourt, the Casiño Group belatedly claims that the statements in
sufficiently compelling reason to compel the testimonies of these alleged expert witnesses for the EIS prepared by RPEnergy established the significant negative environmental impacts of
the following reasons. the project. They argue in this manner:

First, the statementsare not sufficiently specificto point to us a flaw (or flaws) in the study or Acid Rain
design/implementation (or some other aspect) of the project which provides a causal link or, at
least, a reasonable connection between the construction and operation ofthe project vis-à-vis 35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW
potential grave environmental damage. In particular, they do not explain why the Coal-Fired Thermal Power Plant Project, acid rain may occur in the combustion of coal, to wit
Environmental Management Plan (EMP) contained in the EIS of the project will –xxxx
notadequately address these concerns.
During the operation phase, combustion of coal will result in emissions of particulates SOx
Second, some of the concerns raisedin the alleged statements, like acid rain, warming and and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the
acidification of the seawater, and discharge of pollutants were, as previously discussed, atmosphere. High levels of NO2 emissions may give rise to health problems for residents
addressed by the evidence presented by RP Energy before the appellate court. Again, these within the impact area.
alleged statements do not explain why such concerns are not adequately covered by the EMP
of RP Energy. xxxx

Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, Asthma Attacks
do not clearly and specifically establish how these omissions have led to the issuance of an
ECC that will pose significant negative environmental impacts once the project is constructed 36. The same EPRMP143 mentioned the incidence of asthma attacks [as a] result of power
and becomes operational. The recommendations stated therein would seem to suggest points plant operations, to wit –
 FINALS NATRES CASE PAJE vs CASINO 20
before this Court, which led this Court to eventually dispense with its comment.148 We must
xxxx express our disapproval over the way it has prosecuted itsclaims, bordering as it does on
trifling with court processes. We deem itproper, therefore, to admonishit to be more
The incidence of asthma attacks among residents in the vicinity of the project site may circumspect in how it prosecutesits claims.
increase due to exposure to suspended particulates from plant operations.144
In sum, we agree with the appellate court that the Casiño Group failed to substantiate its
RP Energy, however, counters that the above portions of the EIS were quoted out of context. claims thatthe construction and operation of the power plant will cause environmental damage
As to the subject of acid rain, the EIS states in full: of the magnitude contemplated under the writ of kalikasan. The evidence it presented is
inadequate to establish the factual bases of its claims.
Operation
II.
During the operation phase, combustion of coal will result in emissions of particulates, SOx
and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as
atmosphere. High levels of NO2 emissions may give rise to health problems for residents representative of RP Energy, in the Statement of Accountability of the ECC.
within the impact area. Emissions may also have an effect onvegetation (Section 4.1.4.2).
However, the use of CFBC technology is a built-in measure that results in reduced emission The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the
concentrations. SOx emissions will beminimised by the inclusion of a desulfurisation process, Statement of Accountability portion of the ECC.
whilst NOx emissions will be reduced as the coal is burned at a temperature lower than that
required to oxidise nitrogen.145 (Emphasis supplied) We shall discuss the correctness ofthis ruling on both procedural and substantive grounds.
Procedurally, we cannot fault the DENR for protesting the manner by which the appellate
As to the subject of asthma attacks, the EIS states in full: court resolved the issue of the aforesaid lack of signature. We agree with the DENR that this
issue was not among those raised by the Casiño Group in its Petition for Writ of Kalikasan.149
The incidence of asthma attacks among residents in the vicinity of the project site may What is more, this was not one of the triable issues specificallyset during the preliminary
increase due to exposureto suspended particulates from plant operations. Coal and ash conference of this case.150
particulates may also become suspended and dispersed into the air during unloading and
transport, depending on wind speed and direction. However, effect on air quality due to How then did the issue oflack of signature arise?
windblown coal particulates will be insignificant as the coal handling system will have
enclosures (i.e. enclosed conveyors and coal dome) to eliminate the exposure of coal to open A review of the voluminous records indicates that the matterof the lack of signature was
air, and therefore greatly reduce the potential for particulates from being carried away by wind discussed, developed or surfaced only inthe course of the hearings, specifically, on
(coalhandling systems, Section 3.4.3.3). In addition, the proposed process will include an clarificatory questions from the appellate court, to wit:
electrostaticprecipitator that will remove fly ash from the flue gas prior to its release through
the stacks, and so particulates emissions will be minimal.146 (Emphasis supplied) J. LEAGOGO:

We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this
attacks, it goes on to state that there are mitigating measures that will be put in place to prevent Environmental Compliance Certificate dated December 22, 2008 issued by Sec. Jose L.
these ill effects. Quite clearly, the Casiño Group quoted piecemeal the EIS in sucha way as to Atienza, Jr. of the DENR. This is your "Exhibit "18." Would you like to go over this? Are you
mislead this Court as to its true and full contents. familiar with this document?

We deplore the way the Casiño Group has argued this point and we take this time to remind it MS. MERCADO:
that litigants should not trifle withcourt processes. Along the same lines, we note how the
Casiño Group has made serious allegations in its Petition for Writ of Kalikasanbut failed to Yes, it[’]s my Annex "3," Your Honor.
substantiate the same in the course of the proceedings before the appellate court. In particular,
during the preliminary conference of this case, the Casiño Group expressly abandoned its J. LEAGOGO:
factual claims on the alleged grave environmental damage that will be caused by the power
plant (i.e., air, water and land pollution) and, instead, limited itself to legal issues regarding the I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the
alleged non-compliance of RP Energy with certain laws and rules in the procurement of the Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the
ECC.147 We also note how the Casiño Group failed to comment on the subject Petitions
 FINALS NATRES CASE PAJE vs CASINO 21
letter dated December 22, 2008. And on page 3, Dr. Julian Amador recommended approval It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who
and it was approved by Sec. Atienza. You see that on page 3? provided this, I believe, to the lawyers. This copy was not signed because during….

MS. MERCADO: J. LEAGOGO:

Yes, Your Honor. But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me
that your Exhibit "18" is not signed by Mr. Aboitiz?
J. LEAGOGO:
MS. MERCADO:
Okay. On the same page, page 3, there’s a Statement of Accountability.
That’s correct, Your Honor.151
MS. MERCADO:
We find this line of questioning inadequate to apprise the parties that the lack of signature
Yes, Your Honor. would be a key issue in this case; as in fact it became decisive in the eventual invalidation of
the ECC by the appellate court.
J. LEAGOGO:
Concededly, a court has the power to suspend its rules of procedure in order to attain
Luis, who is Luis Miguel Aboitiz? substantial justice so that it has the discretion, in exceptional cases, to take into consideration
matters not originally within the scope of the issues raised in the pleadings or set during the
MS. MERCADO: preliminary conference, in order to prevent a miscarriage of justice. In the case at bar, the
importance of the signature cannot be seriously doubted because it goes into the consent and
During that time he was the authorized representative of RP Energy, commitment of the project proponent to comply with the conditions of the ECC, which is vital
to the protection of the right to a balanced and healthful ecology of those who may be affected
Your Honor. by the project. Nonetheless, the power of a court tosuspend its rules of procedure in
exceptional cases does not license it to foist a surprise on the parties in a given case. To
J. LEAGOGO: illustrate, in oral arguments before this Court, involving sufficiently important public interest
cases, we note that individual members of the Court, from time to time, point out matters that
Now, who is the authorized representative of RP Energy? may not have been specifically covered by the advisory (the advisory delineates the issues to
be argued and decided). However, a directive is given to the concerned parties to discuss the
MS. MERCADO: aforesaid matters in their memoranda. Such a procedure ensures that, at the very least, the
parties are apprised that the Court has taken an interest in such matters and may adjudicate the
It would be Mr. Aaron Domingo, I believe. case on the basis thereof. Thus, the parties are given an opportunity to adequately argue the
issue or meet the issue head-on. We, therefore, find that the appellate court should have, at the
J. LEAGOGO: very least, directed RP Energy and the DENR to discuss and elaborate on the issue of lack of
signature in the presentation of their evidence and memoranda, beforemaking a definitive
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of ruling that the lack thereof invalidated the ECC.This is in keeping with the basic tenets of due
Accountability? process.

Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, At any rate, we shall disregard the procedural defect and rule directly on whether the lack of
representing Redondo Peninsula Energy with office address located at 110 Legaspi Street, signature invalidated the ECC in the interest of substantial justice.
Legaspi Village, Makati City, takes full responsibility in complying with all conditions in
thisEnvironmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not The laws governing the ECC, i.e., PresidentialDecree No. (PD) 1151 and PD 1586, do not
signed? specifically state that the lack of signature in the Statement of Accountability has the effect of
invalidating the ECC. Unlike in wills or donations, where failure to comply withthe specific
MS. MERCADO: form prescribed by law leads to its nullity,152 the applicable laws here are silentwith respect
to the necessity of a signature in the Statement of Accountability and the effect of the lack
thereof. This is, of course, understandable because the Statement of Accountability is a mere
 FINALS NATRES CASE PAJE vs CASINO 22
off-shoot of the rule-making powers of the DENR relative tothe implementation of PD 1151 composed third party experts commissioned by EMB as the EIA Review Committee for
and PD 1586. To determine, therefore, the effect of the lack of signature, we must look atthe PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee,
significance thereof under the Environmental Impact Assessment (EIA) Rules of the DENR for IEE-based applications. EMB evaluates the EIARC recommendations and the public’s
and the surrounding circumstances of this case. inputs during public consultations/hearings in the process of recommending a decision on the
application. The EIARC Chair signs EIARC recommendations including issues outside the
To place this issue in its proper context, a helpful overview of the stages of the EIA process, mandate of the EMB. The entire EIA review and evaluation process is summarized in the
taken from the Revised Manual, is reproduced below: Review Process Report (RPR) of the EMB, which includes a draft decision document.

Figure 1-3 Overview of Stages of the Philippine EIA Process153 5.0 DECISION
MAKING
1.0 SCREENING
Decision Making involves evaluation of EIA recommendations and the draft decision
Screeningdetermines if a project is covered or not covered by the PEISS.154 If a project is document, resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a
covered, screening further determines what document type the project should prepare to secure covered project is issued its certificate of Environmental Compliance Commitment (ECC)
the needed approval, and what the rest of the requirements are in terms of EMB office of while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC).
application, endorsing and decision authorities, duration of processing. Endorsing and deciding authorities are designated by AO 155 42, and further detailed in this
Manual for every report type. Moreover, the Proponent signs a sworn statement of full
2.0 SCOPING responsibility on implementation of its commitments prior to the release of the ECC. 156 The
ECC is then transmitted to concerned LGUs and other GAs for integration into their
Scopingis a Proponent-driven multi-sectoral formal process of determining the focused Terms decisionmaking process. The regulated part of EIA Review is limited to the processes within
of Reference of the EIA Study. Scoping identifies the most significant issues/impacts of a EMB control. The timelines for the issuance of decision documents provided for in AO 42 and
proposed project, and then, delimits the extent of baseline information to those necessary to DAO 2003-30 are applicable only from the time the EIA Report is accepted for substantive
evaluate and mitigate the impacts. The need for and scope of an Environmental Risk review to the time a decision is issued on the application.
Assessment (ERA) is also done during the scoping session. Scoping is done with the local
community through Public Scoping and with a third party EIA Review Committee (EIARC) MONITORING.
through Technical Scoping, both with the participation of the DENR-EMB. The process 6.0 VALIDATION, and
results in a signed Formal Scoping Checklist by the review team, with final approval by the EVALUATION/
EMB Chief. AUDIT
Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent
EIA STUDY and against the ECC and itscommitments in the Environmental Management and Monitoring Plans
3.0 REPORT to ensure actual impacts of the project are adequately prevented or mitigated.
PREPARATION
The signing of the Statement of Accountability takes placeat the Decision Making Stage. After
a favorable review of its ECC application, the project proponent, through its authorized
The EIA Studyinvolves a description of the proposed project and its alternatives,
representative, is made to sign a sworn statement of full responsibility on the implementation
characterization of the project environment, impact identification and prediction, evaluation of
ofits commitments prior to the official release of the ECC.
impact significance, impact mitigation, formulation of Environmental Management and
Monitoring Plan, withcorresponding cost estimates and institutional support commitment. The
The definition of the ECC in the Revised Manual highlights the importance of the signing of
study results are presented in an EIA Reportfor which an outline is prescribed by EMB for
the Statement of Accountability:
every major document type
Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance
EIA REPORT
Commitment to which the Proponent conforms with, after DENR-EMB explains the ECC
4.0 REPORT and
conditions, by signing the sworn undertaking of full responsibility over implementation of
EVALUATION
specified measures which are necessary to comply with existing environmental regulations or
to operate within best environmental practices that are not currently covered by existing laws.
Review of EIA Reportsnormally entails an EMB procedural screening for compliance with It is a document issued by the DENR/EMB after a positive review of an ECC application,
minimum requirements specified during Scoping, followed by a substantive review of either certifying that the Proponent has complied with all the requirements of the EIS System and has
 FINALS NATRES CASE PAJE vs CASINO 23
committed to implement its approved Environmental Management Plan. The ECC also MS. MERCADO:
provides guidance to other agencies and to LGUs on EIA findings and recommendations,
which need to be considered in their respective decision-making process.157 (Emphasis It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who
supplied) provided this, I believe, to the lawyers. This copy was not signed because during…

As can be seen, the signing of the Statement of Accountabilityis an integral and significant J. LEAGOGO:
component of the EIA process and the ECC itself. The evident intention is to bind the project
proponentto the ECC conditions, which will ensure that the project will not cause significant But this is your exhibit, this is yourExhibit "18" and this is not signed. Do you agree with me
negative environmental impacts by the "implementation of specified measures which are that your Exhibit "18" is not signed by Mr. Aboitiz?
necessary to comply with existing environmental regulations or tooperate within best
environmental practices that are not currently covered by existing laws." Indeed, the EIA MS. MERCADO:
process would be a meaningless exercise if the project proponent shall not be strictly bound to
faithfully comply withthe conditions necessary toadequately protect the right of the people to a That’s correct, Your Honor.158 (Emphasis supplied)
healthful and balanced ecology.
Due to the inadequacy of the transcriptand the apparent lack of opportunity for the witness to
Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s explain the lack of signature, we find that the witness’ testimony does not, by itself, indicate
representative in the Statement of Accountability is necessary for the validity of the ECC. It is that there was a deliberate or malicious intent not to sign the Statement of Accountability.
not, as RP Energy would have it, a mere formality and its absence a mere formal defect.
Second, as previously discussed, the concerned parties to this case, specifically, the DENR and
The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP RP Energy, werenot properly apprised that the issue relative to the lack of signature would be
Energy, in the Statement of Accountability sufficient ground to invalidate the ECC? decisive inthe determination of the validity of the ECC. Consequently, the DENR and
RPEnergy cannot be faulted for not presenting proof during the course ofthe hearings to
Viewed within the particular circumstances of this case, we answer in the negative. squarely tackle the issue of lack of signature.

While it is clear that the signing of the Statement of Accountability is necessary for the Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature
validity ofthe ECC, we cannot close oureyes to the particular circumstances of this case. So invalidated the ECC,RP Energy attached, to its Motion for Partial Reconsideration, a certified
often have we ruled that this Court is not merely a court of law but a court of justice. We find true copy of the ECC, issued by the DENREMB, which bore the signature of Mr. Aboitiz. The
that there are several circumstances present in this case which militate against the invalidation certified true copy of the ECC showed that the Statement of Accountability was signed by Mr.
of the ECC on this ground. Aboitiz on December 24, 2008.159

We explain. The authenticity and veracity of this certified true copy of the ECC was not controverted by
the Casiño Group in itscomment on RP Energy’s motion for partial reconsideration before the
First, the reason for the lack of signature was not adequately taken into consideration by the appellate court nor in their petition before this Court. Thus, in accordance with the
appellate court. To reiterate, the matter surfaced during the hearing of this case on clarificatory presumption of regularity in the performance of official duties, it remains uncontroverted that
questions by the appellate court, viz: the ECC on file with the DENR contains the requisite signature of Mr. Aboitiz in the
Statement of Accountability portion.
J. LEAGOGO:
As previously noted, the DENR and RPEnergy were not properly apprised that the issue
Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of relative to the lack ofsignature would be decisive in the determination of the validity of the
Accountability? ECC. As a result, we cannot fault RP Energy for submitting the certified true copy of the ECC
only after it learned that the appellate court had invalidated the ECC on the ground of lack
Because the Statement of Accountability says, "Mr. Luis Miguel Aboitiz, Director, ofsignature in its January 30, 2013 Decision.
representing Redondo Peninsula Energy with office address located at 110 Legaspi Street,
Legaspi Village, Makati City, takes full responsibility in complying with all conditions in this We note, however, that, as previously discussed, the certified true copy of the Statement of
Environmental Compliance Certificate [ECC][.]" Will you tell this Court why this was not Accountability was signed by Mr. Aboitiz on December 24, 2008 or two days after the ECC’s
signed? official release on December 22, 2008. The aforediscussed rules under the Revised Manual,
however, state that the proponent shall sign the sworn statement of full responsibility on
 FINALS NATRES CASE PAJE vs CASINO 24
implementation of its commitments priorto the release of the ECC. Itwould seem that the ECC Whether the first and second amendments to the ECC are invalid for failure to undergo a new
was first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the DENR to environmental impact assessment (EIA) because of the utilization of inappropriate EIA
serve as its file copy. Admittedly, there is lack of strict compliance with the rules although the documents.
signature ispresent. Be thatas it may, we find nothing in the records to indicate that this was
done with bad faith or inexcusable negligence because of the inadequacy of the evidence and Upholding the arguments of the Casiño Group, the appellate court ruled that the first and
arguments presented, relative to the issue of lack of signature, in view of the manner this issue second amendments tothe ECC were invalid because the ECC contained an express restriction
arose in this case, as previously discussed. Absent such proof, we are not prepared to rule that that any expansion of the project beyond the project description shall be the subject of a new
the procedure adopted by the DENR was done with bad faithor inexcusable negligence but we EIA. It found that both amendments failed to comply with the appropriate EIA documentary
remind the DENR to be more circumspect in following the rules it provided in the Revised requirements under DAO 2003-30 and the Revised Manual. In particular, it found that the
Manual. Thus, we rule that the signature requirement was substantially complied with pro hac Environmental Performance Report and Management Plan (EPRMP) and Project Description
vice. Report (PDR), which RP Energy submitted tothe DENR, relative to the application for the first
and second amendments, respectively, were not the proper EIA document type. Hence, the
Fourth, we partly agree with the DENRthat the subsequent letter-requests for amendments to appellate court ruled that the aforesaid amendments were invalid.
the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate its implied conformity to the
ECC conditions. In practical terms, if future litigation should occur due to violations of the Preliminarily, we must state that executive actions carry presumptive validity so that the
ECC conditions, RP Energy would be estopped from denying its consent and commitment to burden of proof is on the Casiño Group to show that the procedure adopted bythe DENR in
the ECC conditions even if there was no signature in the Statement of Accountability. granting the amendments to the ECC were done with grave abuse of discretion. More so here
However, we note that the Statement of Accountability precisely serves to obviate any doubt because the administration of the EIA process involves special technical skill or knowledge
as to the consent and commitment of the project proponent to the ECC conditions. At any rate, which the law has specifically vested in the DENR.
the aforesaid letter-requests do additionally indicate RP Energy’s conformity to the ECC
conditions and, thus, negate a pattern to maliciously evade accountability for the ECC After our own examination of DAO 2003-30 and the Revised Manual as well as the
conditions or to intentionally create a "loophole" in the ECC to be exploited in a possible voluminous EIA documents of RP Energy appearing in the records of this case, we find that
futurelitigation over non-compliance with the ECC conditions. the appellate court made an erroneous interpretation and application of the pertinent rules.

In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of We explain.
lack of signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy
of the ECC submitted by RP Energy to the appellate court. While the signature is necessary for As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law
the validity of the ECC, the particular circumstances of this case show that the DENR and RP recognized the right ofthe people to a healthful environment.160 Pursuant thereto, in every
Energy were not properly apprised of the issue of lack ofsignature in order for them to present action, project or undertaking, which significantly affects the quality of the environment, all
controverting evidence and arguments on this point, as the matter only developed during the agencies and instrumentalities of the national government, including government-owned or
course of the proceedings upon clarificatory questions from the appellate court. Consequently, -controlled corporations, as well as private corporations, firms, and entities were required to
RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it prepare, file and include a statement (i.e., Environmental Impact Statement or EIS) containing:
learned that the ECC had been invalidated on the ground of lack of signature in the January
30, 2013 Decision of the appellate court. (a) the environmental impact of the proposed action, project or undertaking;

The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of (b) any adverse environmental effect which cannot be avoided should the proposal be
Accountability portion, was issued by the DENR-EMB and remains uncontroverted. Itshowed implemented;
that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008.
Although the signing was done two days after the official release of the ECC on December 22, (c) alternative to the proposed action;
2008, absent sufficient proof, we are not prepared to rule that the procedure adoptedby the
DENR was done with bad faith or inexcusable negligence. Thus, werule that the signature (d) a determination that the short-term uses of the resources of the environment are consistent
requirement was substantially complied with pro hac vice. with the maintenance and enhancement of the longterm productivity of the same; and

III. (e) whenever a proposal involves the use of depletable or non-renewable resources, a finding
must be made that such use and commitment are warranted.161
 FINALS NATRES CASE PAJE vs CASINO 25
To further strengthen and develop the EIS, PD1586 was promulgated, which established the
Philippine Environmental Impact Statement System (PEISS). The PEISS is "a systems- B- existing projects for modification or re-start up; and
oriented and integrated approach to the EIS system to ensure a rational balance between socio-
economic development and environmental protection for the benefit of present and future C- operating projects without an ECC.
generations."162 The ECC requirement ismandated under Section 4 thereof:
Finally, the aforesaid table considers whether the project is single or co-located.165 After
SECTION 4. Presidential Proclamation ofEnvironmentally Critical Areas and Projects. The which, it states the appropriateEIA document typeneeded for the application for an ECC or
President of the Philippines may, on his own initiative or upon recommendation of the CNC, as the case may be.
National Environmental Protection Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally critical. No person, partnership or The appropriate EIA document type vis-à-vis a particular project depends on the potential
corporation shall undertake or operate any such declared environmentally critical project or significant environmental impact of the project. At the highest level would be an ECP, such as
area without first securing an Environmental Compliance Certificate issued by the President or the subject project. The hierarchy of EIA document type, based on comprehensiveness and
his dulyauthorized representative. x x x (Emphasis supplied) detail of the study or report contained therein, insofar as single projects are concerned, is as
follows:
The PEISS consists of the Environmental Impact Assessment (EIA) process, which is
mandatory for private orpublic projects thatmay significantly affect the quality of the 1. Environmental Impact Statement166 (EIS),
environment. It involves evaluating and predicting the likely impacts of the project on the
environment, designing appropriate preventive, mitigating and enhancement measures 2. Initial Environmental Examination167 (IEE) Report,
addressing these consequences to protect the environment and the community’s welfare.163
3. Initial Environmental Examination168 (IEE) Checklist Report,
PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to
determine when a project is required to secure an ECC and when it is not. When an ECC is not 4. Environmental Performance Report and Management Plan169 (EPRMP), and
required, the project proponent procures a Certificate of Non-Coverage (CNC).164 As part of
the EIA process, the project proponent is required to submit certain studies or reports (i.e., EIA 5. Project Description170 (PD) or Project Description Report (PDR).
document type) to the DENR-EMB, which willbe used in the review process in assessing the
environmental impact of the project and the adequacy of the corresponding environmental Thus, in the course of RP Energy’s application for anECC, it was required by the DENR-EMB
management plan or program to address such environmental impact. This will then be part of to submit an EIS because the subject project is: an ECP, new and a single project.
the bases to grant or deny the application for an ECC or CNC, as the case may be.
The present controversy, however, revolves around, not an application for an ECC, but
Table 1-4 of the Revised Manual summarizes the required EIA document type for each project amendments thereto.
category. It classifies a project as belonging to group I, II, III, IV or V, where:
RP Energy requested the subject first amendment to its ECC due to its desire to modify the
I- Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or project design through the inclusion of a barge wharf, seawater intake breakwater, subsea
Non-Environmentally Critical Area (NECA), discharge pipeline, raw water collection system, drainage channel improvement and a 230-kV
double transmission line. The DENR-EMB determined that this was a major amendment and,
II- Non-Environmentally Critical Projects (NECPs) in ECA, thus, required RP Energy to submit an EPRMP.

III- NECPs in NECA, The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct
EIA document type based on the definition of an EPRMP in DAO 2003-30 and the Revised
IV- Co-located Projects, and Manual.

V- Unclassified Projects. In DAO 2003-30, an EPRMP is defined as:

The aforesaid table then further classifies a project, as pertinent to this case, as belonging to Environmental Performance Report and Management Plan (EPRMP) — documentation of the
category A,B or C, where: actual cumulative environmental impacts and effectiveness of current measures for single
projects that are already operating but without ECC's, i.e., Category A-3. For Category B-3
A- new; projects, a checklist form of the EPRMP would suffice;171 (Emphasis supplied)
 FINALS NATRES CASE PAJE vs CASINO 26
modification or expansion, or (2) operating but without an ECC. Instead, the subject project is
Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for "A-2: an unimplemented or a non-implemented, hence,non-operating project with a previous ECC
Existing and to beexpanded (including undertakings that have stopped operations for more but planning for modification or expansion.
than 5 years and plan to re-start with or without expansion) and A-3: Operating without ECC."
The error in the above theory lies in the failure to consider or trace the applicable provisions of
On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA DAO 2003-30 and the Revised Manual on amendments to an ECC.
document type, thus:
The proper starting point in determining the validity of the subject first amendment,
For operating projects with previous ECCs but planning or applying for clearance to specifically, the propriety of the EIA document type (i.e., EPRMP) which RP Energy
modify/expand or re-start operations, or for projects operating without an ECCbut applying to submitted in relation to its application for the aforesaid amendment, must of necessity be the
secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an rules on amendments to an ECC.174 This is principally found in Section 8.3,Article II of DAO
EIA Report incorporating the project’s environmental performance and its current 2003-03, viz:
Environmental Management Plan. This report isx x x anx x x Environmental Performance
Report and Management Plan (EPRMP) for single project applications x x x172 (Emphasis 8.3 Amending an ECC
supplied)
Requirements for processing ECC amendments shall depend on the nature of the request but
In its "Glossary," the Revised Manual defines an EPRMP as: shall be focused on the information necessary to assess the environmental impact of such
changes.
Environmental Performance Report and Management Plan (EPRMP) - documentation of the
actual cumulative environmental impacts and effectiveness of current measures for single 8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of
projects that are already operating but without ECCs.173 (Emphasis supplied) post-ECC requirements shall be decided upon by the endorsing authority.

Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for "Item I-B: 8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.
Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-
C: Operating without ECC." 8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment
application shall not exceed thirty (30) working days; and for ECCs issued pursuant to an EIS,
From these definitions and tables, an EPRMP is, thus, the required EIA document type for an the processing shall not exceed sixty (60) working days. Provisions on automatic approval
ECP-single project which is: related to prescribed timeframes under AO 42 shall also apply for the processing of
applications to amend ECCs. (Emphasis supplied)
1. Existing and to be expanded (including undertakings that have stopped operations for more
than 5 years and plan to re-start with or without expansion); Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2,
paragraph 16:
2. Operating but without ECCs;
16) Application Process for ECC Amendments
3. Operating projects with previous ECCs but planning or applying for clearance to
modify/expand orre-start operations; and Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs.
Annex 2-1c provides a decision chart for the determination of requirements for project
4. Existing projects for modification or re-start up. modifications, particularly for delineating which application scenarios will require EPRMP
(which will be subject to Figure 2-1 process) or other support documentations (which will be
It may be observed that, based from the above, DAO2003-30 and the Revised Manual appear subject to Figure 2-4 process). Figure 2-4, in turn, provides:
to use the terms "operating"and "existing" interchangeably. In the case at bar, the subject
project has not yet been constructed although there have been horizontal clearing operations at Figure 2-4. Flowchart on Request for ECC Amendments175
the project site.
Scenario 1: Request for Minor Amendments
On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court —
that the EPRMP is not the appropriate EIA document type— seems plausible because the 1. Typographical error
subject project is not: (1) operating/existing with a previous ECC but planning or applying for
 FINALS NATRES CASE PAJE vs CASINO 27
2. Extension of deadlines for submission of post-ECC requirement/s For projects that have started implementation, EMB evaluates request based on Annex 2-1cfor
various scenarios of project modification. Documentary requirements may range from a
3. Extension of ECC validity Letter-Request to an EPRMP to the EMB CO/RO while for those with Programmatic ECC, a
PEPRMP may need to be submitted to the EMB CO to support the request. It is important to
4. Change in company name/ownership note that for operating projects, the appropriate document is not an EIS but an EIA Report
incorporating the project’s historical environmental performance and its current EMP, subject
5. Decrease in land/project area or production capacity to specific documentary requirements detailed in Annex 2-1cfor every modification scenario.

6. Other amendments deemed

3
"minor" at the discretion of the
EMB CO/RO Director The ECC-endorsing EMB office assigns a Case Handler to evaluate the request

Scenario 2: Request for Major Amendments For EPRMP/PEPRMP-based requests, EMB forms a Technical/Review Committee to evaluate
the request. For other requests, a Case Handler may solely undertake the evaluation. EMB CO
1. Expansion of project area w/in catchment described in EIA and RO will process P/EPRMP for PECC/ECC under Groups I and II respectively. (Go to
Figure 2-1)
2. Increase in production capacity or auxiliary component of the original project
3
3. Change/s in process flow or technology
4
4. Addition of new product

5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS ECC-endorsing Authority decides on the Letter-Request, based on CH recommendation
PROPONENT’S OPTION, NOT EMB’S)
ECC-endorsing/issuing Authority (per Table 1-4) decides on Letter
6. Revision/Reformatting of ECC Conditions Requests/EPRMP/PEPRMP/Other documents based on EMB CH and/or Tech/Review
Committee recommendations.
7. Other amendments deemed "major" at the discretion of the EMB CO/RO Director
Maximum Processing Time to Issuance of Decision
1 [Start] 1[Start]
Within three (3) years from ECC issuance (for projects not started)176 OR at any time during Max Processing Time to Issuance of Decision
project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-
EMB office a LETTER-REQUEST for ECC amendment, including data/information, reports EMB CO
or documents to substantiate the requested revisions.
7 workdays

CO PEPRMP

2 CO EPRMP
Within three (3) years from ECC issuance (for projects not started)177 OR at any time during
project implementation, the Proponent prepares and submits to the ECC-endorsing DENR- RO PEPRMP
EMB office a LETTER-REQUESTfor ECC amendments, including data/information, reports
or documents to substantiate the requested revisions. RO EPRMP

2 EMB RO
 FINALS NATRES CASE PAJE vs CASINO 28
7 workdays
Expansion of land/project area w/in catchment or environment described in the original EIA
120 Report

workdays Since the modification will be in an area already described and evaluated in the original EIA
Report, incremental impacts from additional land development will have been addressed in the
90 approved EMP

workdays ECC Amendment /Letter Request with brief description of activities in the additional area

60 2.

workdays Expansion of land/project area OUTSIDE catchment or environment described in the original
EIA Report
30
It is assumed the modification proposal may have significant potential impacts due to absence
workdays of prior assessment as to how the project may affect the proposed expansion area

ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)

Other document applications: max 30 workdays (EMB CO and RO)
3.

Increase in capacity or auxiliary component of the original project which will eithernot entail
exceedance of PDR (non-covered project) thresholds or EMP & ERA can still address impacts
Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment
& risks arising from modification
process squarely applies to projects not started, such as the subject project, based on the phrase
"[w]ithin three (3) years from ECC issuance (for projects not started) x x x".
Non-exceedance of PDR (non covered project) threshold is assumed that impacts are not
significant;
Annex 2-1c, in turn, provides a "Decision Chart for Determination of Requirements For
Project Modification." We reproduce below the first three columns of Annex 2-1c, as are
Modification scenario and decision process are applicable to both nonimplemented and
pertinent to the issue at hand:
operating projects issued ECCs
ANNEX 2-1c
ECC Amendment /Letter Request with brief description of additional capacity or component
DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT
4.
MODIFICATION178
Increase in capacity or auxiliary component of the original project which will either exceed
Proposed Modifications to the Current Project
PDR (noncovered project) thresholds, or EMP & ERA cannot address impacts and risks
arising from modification
Analysis of Proposed Modifications
Exceedance of PDR (non-covered) threshold is assumed that impacts may be potentially
Resulting Decision Document/Type of EIA Report Required
significant, particularly if modification will result to a next higher level of threshold range
Operational projects, or those which have stopped for ≤5 years and plan to re-start
Modification scenario and decision process are applicable to both nonimplemented and
operating projects with or without issued ECCs
For Groups I and II EISbased Projects with an ECC applying for modification
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)
1.
 FINALS NATRES CASE PAJE vs CASINO 29
New ECC /EIS
5.
9.
Change/s in process flow or technology
Integration of ECCs for similar or contiguous projects
EMP and ERA can still address impacts & risks arising from modification
(Note: Integration of ECCs is at the option of the Proponent to request/apply)
ECC Amendment /Letter Request with brief process description
No physical change in project size/area; no change in process/technology but improved
EMP and ERA cannot address impacts & risks arising from modification management of continuous projects by having an integrated planning document in the form or
an integrated ECC (ECC conditions will be harmonized across projects; conditions relating to
ECC Amendment /Environmental Performance Report and Management Plan (EPRMP) requirements within other agencies’ mandates will be deleted)

6. ECC Amendment /Letter Request with consolidated Project Description Report and integrated
EMP
Additional component or products which will enhance the environment (e.g. due to
compliance to new stringent requirements) or lessen impacts on the environment (e.g. thru 10.
utilization of waste into new products)
Revision/ Reformatting of ECC Conditions
Activity is directly lessening or mitigating the project’s impacts on the environment. However,
to ensure there is no component in the modification which fall under covered project types, No physical change on the project but ECC conditions relating to requirements within other
EMB will require disclosure of the description of the components and process with which the agencies’ mandates will be deleted
new product will be developed.
ECC Amendment /Letter Request only
ECC Amendment /Letter Request with consolidated Project Description Report of new project
component and integrated EMP We now apply these provisions to the case at bar.

7. To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned
change of project design involving the inclusion of a barge wharf, seawater intake breakwater,
Downgrade project size or area or other units of measure of thresholds limits subseadischarge pipeline, raw water collection system, drainage channel improvement and a
230-kV double transmission line. The DENR-EMB determined179 that the proposed
No incremental adverse impacts; may result to lower project threshold or may result to non- modifications involved a major amendment because it will result in anincrease in capacity or
coverage auxiliary component, as per Scenario 2,Item #2 of Figure 2-4:

From ECC Amendment to Relief of ECC Commitments (Conversion to CNC): /Letter- Scenario 2: Request for Major Amendments
Request only
1. Expansion of project area w/in catchment described in EIA
8.
2. Increase in production capacity or auxiliary component of the original project180
Conversion to new project type (e.g. bunker-fired plant to gas-fired)
3. Change/s in process flow or technology
Considered new application but with lesser data requirements since most facilities are
established; environmental performance in the past will serve as baseline; However, for 4. Addition of new product
operating projects, there may be need to request for Relief from ECC Commitment prior to
applying for new project type to ensure no balance of environmental accountabilities from the 5. Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS
current project PROPONENT’S OPTION, NOT EMB’S)
 FINALS NATRES CASE PAJE vs CASINO 30
6. Revision/Reformatting of ECC Conditions abuse of discretion, the DENR-EMB’s findings are entitled to great respect because it is the
administrative agency with the special competence or expertise to administer or implement the
7. Other amendments deemed "major at the discretion of the EMB CO/RO Director EIS System. The apparent confusion of the Casiño Group and the appellate court is
understandable. They had approached the issue with a legal training mindset or background.
The Casiño Group does not controvert this finding by the DENR-EMB and we find the same As a general proposition, the definition of terms in a statute or rule is controlling as to its
reasonably supported by the evidence on record considering that, among others, the nature and scope within the context of legal or judicial proceedings. Thus, since the procedure
construction of a 230-kVdouble transmission line would result in major activities outside the adopted by the DENR-EMB seemed to contradict or go beyond the definition of terms in the
project site which could have significant environmental impacts. relevant issuances, the Casiño Group and the appellate court concluded that the procedure was
infirm.
Consequently, the amendment was considered asfalling under Item#4 of Annex 2-1c, and,
thus, the appropriate EIA document typeis an EPRMP, viz: However, a holistic reading of DAO2003-30 and the Revised Manual will show that such a
legalistic approach inits interpretation and application is unwarranted. This is primarily
4. because the EIA process is a system, not a set of rigid rules and definitions. In the EIA
process, there is much room for flexibility in the determination and use ofthe appropriate EIA
Increase in capacity or auxiliary component of the original project which will either exceed document type as the foregoing discussion has shown.184 To our mind, whatshould be
PDR (non-covered project) thresholds, or EMP & ERA cannot address impacts and risks controlling is the guiding principle set in DAO 2003-30 in the evaluation of applications for
arising from modification amendments to ECCs, as stated in Section 8.3 thereof: "[r]equirements for processing ECC
amendments shall depend on the nature of the requestbut shall be focused on theinformation
Exceedance of PDR (non-covered) thresholds is assumed that impacts may be potentially necessary to assess the environmental impact of such changes."185
significant, particularly if modification will result to a next higher level of threshold range
This brings us to the next logicalquestion, did the EPRMP provide the necessary information
Modification scenario and decision process are applicable to both nonimplemented and in order for the DENR-EMB to assess the environmental impact of RP Energy’s request
operating projects with or without issued ECCs181 relative to the first amendment?

ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)182 We answer in the affirmative.

Note that the Chart expressly states that, "[m]odification scenario and decision process are In the first place, the Casiño Group never attempted to prove that the subject EPRMP,
applicable to both non-implementedand operating projects withor without ECCs."183 To submitted by RP Energy to the DENR-EMB, was insufficient for purposes of evaluating the
recall, the subject project has not been constructed and is not yet operational, although environmental impact of the proposed modifications to the original project design. There is no
horizontal clearing activities have already been undertaken at the project site. Thus, the subject claim that the data submitted were falsified or misrepresented. Neither was there an attempt to
project may be reasonably classified as a non-implemented project with an issued ECC, which subpoena the review process documents of the DENR to establish thatthe grant of the
falls under Item#4 and, hence, an EPRMP is the appropriate EIA document type. amendment to the ECC was done with grave abuse of discretion or to the grave prejudice of
the right to a healthful environment of those who will beaffected by the project. Instead, the
This lengthy explanation brings us toa simple conclusion. The definitions in DAO 2003-30 Casiño Group relied solely on the definition of terms in DAO 2003-30 and the Revised
and the Revised Manual, stating that the EPRMP is applicable to (1) operating/existing Manual, which approach, as previously discussed,was erroneous.
projectswith a previous ECC but planning or applying for modification or expansion, or (2)
operating projects but without an ECC, were not an exclusive list. At any rate, we have examined the contents of the voluminous EPRMP submitted by RP
Energy and wefind therein substantial sections explaining the proposed changes as well as the
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the adjustments that will be made in the environmental management plan in order to address the
EPRMP can, likewise, be used as an appropriate EIA document type for a single, non- potential environmental impacts of the proposed modifications to the original project design.
implemented project applying for a major amendment to its ECC, involving an increase in These are summarized in the "Project Fact Sheet"186 of the EPRMP and extensively discussed
capacity or auxiliary component, which will exceed PDR (non-covered project) thresholds, or in Section 4187 thereof. Absent any claim or proof to the contrary, we have no bases to
result in the inability of the EMP and ERA to address the impacts and risks arising from the conclude that these data were insufficient to assess the environmental impact of the proposed
modification, such as the subject project. modifications. In accordance with the presumption of regularity in the performance of official
duties, the DENR-EMB must be deemed to have adequately assessed the environmental
That the proposed modifications in the subject project fall under this class or type of impact of the proposed changes, before granting the request under the first amendment to the
amendment was a determination made by the DENR-EMBand, absent a showing of grave subject ECC.
 FINALS NATRES CASE PAJE vs CASINO 31
Project Description (PD) - document, which may also be a chapter in an EIS, that describes the
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document nature, configuration, use of raw materials and natural resources, production system, waste or
type, for major amendments to an ECC, even for an unimplemented or non- pollution generation and control and the activities of a proposed project. It includes a
implementedproject with a previous ECC, such as the subject project. Consequently, we find description of the use of human resources as well as activity timelines, during the pre-
that the procedure adopted by the DENR, in requiring RP Energy to submitan EPRMP in order construction, construction, operation and abandonment phases.190
to undertake the environmental impact assessment of the planned modifications to the original
project design, relative to the first amendment to the ECC, suffers from no infirmity. We will no longer delve intothe details of these definitions. Suffice it to state, similar to the
discussion on the EPRMP, that if we go by the strict limits of these definitions, the PDR
We apply the same framework of analysis in determining the propriety of a PDR, as the relative to the subject second amendment would not fall squarely under any of the above.
appropriate EIA document type, relative to the second amendment to the subject ECC.
However, again, these are not the only provisions governing the PDR in the Revised Manual.
Again, the Casiño Group, as sustained by the appellate court, relied on the definitions of a
PDR in DAO 2003-30 and the Revised Manual: After the favorable grant of the first amendment, RP Energy applied for another amendment to
its ECC, this time inconsideration of its plan to change the configuration of the project from 2
Project Description (PD) — document, which may also be a chapter in an EIS, that describes x 150 MWto 1 x 300 MW. In practical terms, this meant that the subject project will still
the nature, configuration, use of raw materials and natural resources, production system, waste produce 300 MW of electricity but will now make use of only one boiler (instead of two) to
or pollution generation and control and the activities of a proposed project. It includes a achieve greater efficiency in the operations of the plant. The DENR-EMB determined191 this
description of the use of human resources as well as activity timelines, during the pre- amendment to be minor, under Scenario 1, Item#6 of Figure 2-4:
construction, construction, operation and abandonment phases. It is tobe used for reviewing
co-located and single projects under Category C, aswell as for Category D projects.188 Scenario 1: Request for Minor

xxxx Amendments

a) For new projects: x x x For non-covered projects in Groups II and III, a x x x Project 1. Typographical error
Description Report (PDR) is the appropriate document to secure a decision from DENR/EMB.
The PDR is a "must" requirement for environmental enhancement and mitigation projects in 2. Extension of deadlines for submission of post-ECC requirement/s
both ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign nature of
proposed operations for eventual issuance of a Certificate ofNon-Coverage (CNC). All other 3. Extension of ECC validity
Group III (non-covered) projects do not need to submit PDRs – application is at the option of
the Proponent should it need a CNC for its own purposes, e.g. financing pre-requisite. For 4. Change in company name/ownership
Group V projects, a PDR is required to ensure new processes/technologies or any new unlisted
project does not pose harm to the environment. The Group V PDR is a basis for either 5. Decrease in land/project area or production capacity
issuance of a CNC or classification of the project into its proper project group.
6. Other amendments deemed "minor" at the discretion of the EMB CO/RO Director192
b) For operating projects with previous ECCs but planning or applying for clearance to
modify/expand or re-start operations, or for projects operating without an ECC but applying to — because (1) there is no increase in capacity; (2) it does not constitute any significant
secure oneto comply with PD 1586 regulations, the appropriate document is not an EIS but an impact; and (3) its EMP and ERA as specified in the submitted EPRMP remain the same.193
EIA Report incorporating the project’s environmental performance and its current Relative to Annex 2-1c, the requested amendment was, in turn, determinedto fall under
Environmental Management Plan. This report is either an (6) Environmental Performance Item#3:
Report and Management Plan (EPRMP) for single project applications or a (7) Programmatic
EPRMP (PEPRMP) for co-located project applications. However, for small project 3.
modifications, an updating of the project description or the Environmental Management Plan Increase in capacity or auxiliary component of the original project which will either not entail
with the use of the proponent’s historical performance and monitoring records may suffice.189 exceedance of PDR (non-covered project) thresholds or EMP & ERA can still address impacts
& risks arising from modification
xxxx
Non-exceedance of PDR (non covered project) thresholds is assumed that impacts are not
significant;
 FINALS NATRES CASE PAJE vs CASINO 32
In another vein, we note that the appellate court proceeded from the erroneous premise that the
Modification scenario and decision process are applicable to both non-implemented and EIA is a document, when it repeatedly stated that the amendments to the ECC require a new
operating projects issued ECCs194 EIA, and not merely an EPRMP or PDR. The appellate court relied on the provisoin the ECC,
which stated that "[a]ny expansion of the project beyond the project description or any change
ECC Amendment /Letter Request with brief description of additional capacity or in the activity or transfer of location shall besubject to a new Environmental Impact
component195 Assessment."199

We make the same observation, as before, that the above applies to an unimplemented or non- However, as correctly pointed out by the DENR and RP Energy, the EIA is not a document
implemented project with a previous ECC, like the subject project. Although it may be noted but a process:
thatthe proposed modification does not squarely fall under Item#3, considering that, as
previously mentioned,there will be no increase in capacity relative to the second amendment, Environmental Impact Assessment (EIA) — processthat involves evaluating and predicting
still, we find nothing objectionable to this classification by the DENR-EMB, for it seems plain the likely impacts of a project (including cumulative impacts) on the environment during
enough that this classification was used because the modification was deemed too minor to construction, commissioning, operation and abandonment. It also includes designing
require a detailed project study like an EIS or EPRMP. Since this is the classification most appropriate preventive, mitigating and enhancement measures addressing these consequences
relevant and closely related to the intended amendment, following the basic precept that the to protect the environment and the community's welfare.The process is undertaken by, among
greater includes the lesser, the DENR-EMB reasonably exercised its discretion in merely others, the project proponent and/orEIA Consultant, EMB, a Review Committee, affected
requiring a letter request with a brief description of the modification. communities and other stakeholders.200 (Emphasis supplied)

As earlier noted, the PDR is the EIA document type with the least detail, and, thus, applicable When the provisoin the ECC, therefore, states that a new EIA shall beconducted, this simply
to such minor modifications. Thus, the DENR-EMB cannot be faulted for requiring RPEnergy means that the project proponent shall be required to submit such study or report, as warranted
to submit a PDR relative to its application for the second amendment. Consequently, as before, by the DENR Rules and circumstances, which will sufficiently aid the DENR in making a new
we findthat the Revised Manual supports the procedure adopted by the DENR-EMB in EIA and, thus, determine whether to grant the proposed amendment (or project modification).
requiring RP Energy to submit a PDR in order to assess the environmental impact of the Aswe have seen, consistent with DAO 2003-30 and the Revised Manual, the DENR required
planned modifications relative to the second amendment. RP Energy to submit an EPRMP and a PDR relative to the latter’s request involving the first
and second amendments, respectively, which led to the new EIA of the project in compliance
In their Petition before this Court, the Casiño Group boldly asserts that "[t]here is nothing in with the provisoof the ECC.
the Project Description Report that provides an environmental impact assessment of the effects
of constructing and operating a single 300-MW generating unit."196 However, to our dismay, Verily, the various EIA documents, such as the EPRMP and PDR, are mere tools used by the
as in their other serious allegations in their Petition for Writ ofKalikasan, the same is, likewise, DENR to assess the environmental impact of a particular project. These documents are
baseless. Apart from such a sweeping claim, the Casiño Group has provided no evidence or flexibly used by the DENR, as the circumstances warrant, in order to adequately assess the
argument to back up the same. impacts of a new project or modifications thereto. Being the administrative agency entrusted
with the determination of which EIA document type applies to a particular application for an
An examination of the PDR readily reveals that it contains the details of the proposed amendment to an ECC, falling as it does within its particular technical expertise, wemust
modifications197 and an express finding that no significant environmental impact will be accord great respect to its determination, absent a showing of grave abuse of discretion or
generated bysuch modifications, as in fact it is expected that the operation of the power plant patent illegality.
will become more efficient as a result of the change from 2 x 150 MW to 1 x 300 MW
configuration.198 Consequently, the PDR merely reiterates the same mitigating measures that In sum, we find that the appellate court erred when it ruled that the first and second
will presumably address the minor modifications to the project design. Again, no evidence was amendments to the subject ECC wereinvalid for failure to comply with a new EIA and for
presented to show substantial errors or misrepresentations in these data or their inadequacy for violating DAO 2003-30 and the Revised Manual. The appellate court failed to properly
providing the bases for the DENR-EMB to assess the environmental impact of the proposed consider the applicable provisions in DAO 2003-30 and the Revised Manual on amendments
modifications under the second amendment. to ECCs. Our examination of the provisions on amendments to ECCs, as well as the EPRMP
and PDR themselves, shows that the DENR reasonably exercised its discretion in requiring an
In fine, absent proof to the contrary, bearing in mind that allegations are not proof, we sustain EPRMP and a PDR for the first and second amendments, respectively. Through these
the procedure adoptedby the DENR-EMB in requiring RP Energy to submit a PDR and, on the documents, which the DENR reviewed, a new EIA was conducted relative to the proposed
basis thereof, approving the request for the second amendment. project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent
illegality, relative to both the procedure and substance of the amendment process, we uphold
the validity of these amendments.
 FINALS NATRES CASE PAJE vs CASINO 33

IV. a. Need for Certification. No department of government or other agencies shall issue, renew or
grant anyconcession, license, lease, permit, or enter into any production sharing agreement
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a without a prior certification from the NCIP that the area affected does not overlap any
precondition to the issuance of anECC and the lack of its prior issuance rendered the ECC ancestral domain.
invalid.
b. Procedure for Issuance ofCertification by NCIP.
The appellate court ruled that the ECC issued in favor of RP Energy on December 22, 2008 is
invalid because the CNO covering the subject project was issued only on October 31, 2012 or 1) The certification, above mentioned, shall be issued by the Ancestral Domain Office, only
almost fouryears from the timeof issuance of the ECC. Thus, the ECC was issued in violation after a field based investigation that such areas are not within any certified or claimed
of Section 59 of the IPRA Law and its implementing rules which require that a CNO be ancestral domains.
obtained prior to the issuance of a government agency of, among others, a license or permit. In
so ruling, the appellate court implicitly upheld the Casiño Group’s argument that the ECC is a 2) The certification shall be issued only upon the free, prior, informed and written consent of
form of government license or permit pursuant to Section 4 of PD 1586 which requires all the ICCs/IPs who will be affected by the operation of such concessions, licenses or leases or
entities to securean ECC before (1) engaging in an environmentally critical project or (2) production-sharing agreements. A written consent for the issuance of such certification shall
implementing a project within an environmentally critical area. be signed by at least a majority of the representatives of all the households comprising the
concerned ICCs/IPs. (Emphasis supplied)
The DENR and RP Energy, however, argue that an ECC is not the license or permit
contemplated under Section 59 of the IPRA Law and its implementing rules as may be As may be deduced from its subtitle, Section 59 requires as a precondition, relative to the
deduced from the definition, nature and scope of an ECC under DAO 2003-03 and the Revised issuance of any concession, license, lease or agreement over natural resources, a certification
Manual. The DENR explains that the issuance of an ECC does not exempt the project issued by the NCIP that the area subject thereof does not lie within any ancestral domain.202
proponent from securing other permits and clearances as required under existing laws, This is in keeping with the State policy to protect the rights of Indigenous Cultural
including the CNO, and that the final decision on whether a project will be implemented lies Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains in order to ensure their
with the concerned local government unit/s or the lead government agency which has sectoral economic, social and cultural well-being as well as to recognize the applicability of customary
mandate to promote the government programwhere the project belongs. laws governing property rights or relations in determining the ownership and extent of such
ancestral domain.203
We agree with the DENR and RP Energy.
The IPRA Law and its implementing rules do not define the terms "license" and "permit" so
Section 59, Chapter VIII of the IPRA Law provides: that resort to their plain or ordinary meaning in relation to the intendment of the law is
appropriate.
SEC. 59. Certification Precondition. All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing, or granting any concession,license or A "license" has been defined as "a governmental permission to perform a particular act (such
lease, or entering into any production-sharing agreement, without prior certification from the as getting married), conduct a particular business or occupation, operate machinery or vehicles
NCIP that the area affected does not overlap with any ancestral domain.Such certification shall after proving capacity and ability to do so safely, or use property for a certain purpose"204
only be issued after a field-based investigation is conducted by the Ancestral Domains Office while a "permit" has been defined as "a license or other document given by an authorized
of the area concerned: Provided, That no certification shall be issued by the NCIP without the public official or agency (building inspector, department ofmotor vehicles) to allow a person
free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no or business to perform certain acts."205
department, government agency or government-owned or -controlled corporation may issue
new concession, license, lease, or production sharing agreement while there is a pending The evident intention of Section 59, in requiring the CNO prior to the issuance of a license or
application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or permit, is to prevent the implementation of a project that may impair the right of ICCs/IPs to
suspend, in accordance with this Act, any project that has not satisfied the requirement of this their ancestral domains. The law seeks to ensure that a project willnot overlap with any
consultation process. (Emphasis supplied) ancestral domain prior to its implementation and thereby pre-empt any potential encroachment
of, and/or damage to the ancestral domains of ICCs/IPs without their prior and informed
While Section 9, Part II, Rule VIII of National Commission on Indigenous Peoples (NCIP) consent.
Administrative Order No. 01-98201 states:
With these considerationsin mind, we now look atthe definition, nature and scope of an ECC
SECTION 9. Certification Precondition Prior to Issuance of any Permits or Licenses. — in order to determine if it falls within the ambit of a "license" or "permit" to which the CNO
 FINALS NATRES CASE PAJE vs CASINO 34
requirement, under Section 59 of the IPRA Law and its implementing rules, finds application. document, to be conformed to by the Proponent and represents the project’s Environmental
Section 4 of PD 1586 provides, in part: Compliance Certificate. The release of the ECC allows the project to proceed to the next stage
of project planning, which is the acquisition of approvals from other government agencies and
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. — LGUs, after which the project can start implementation.
The President of the Philippines may, on his own initiative or upon recommendation of the
National Environmental Protection Council, by proclamation declare certain projects, xxxx
undertakings or areas in the country as environmentally critical. No person, partnership or
corporation shall undertake or operate any suchdeclared environmentally critical project or 6) The EIA Process inRelation to Other Agencies’ Requirements It is inherent upon the EIA
area without first securing an Environmental Compliance Certificate issued by the President Process to undertake a comprehensive and integrated approach in the review and evaluation of
orhis duly authorized representative.For the proper management of said critical project or area, environment-related concerns of government agencies (GAs), local government units (LGUs)
the President may by his proclamation reorganize such government offices, agencies, and the general public. The subsequent EIA findings shall provide guidance and
institutions, corporations or instrumentalities including the re-alignment of government recommendations to these entities as a basis for their decision making process.
personnel, and their specific functionsand responsibilities. (Emphasis supplied)
a) An Inter-agency MOA on EIS Streamlining was entered into in 1992 by 29 government
While the above statutory provision reveals that the ECC is an indispensable requirement agencies wherein ECC of covered projects was agreed to be a prerequisite of all other
before (1) the conduct of an environmentally critical project or (2) the implementation of a subsequent government approvals;
project inan environmentally critical area, it does not follow that the ECC is the "license" or
"permit" contemplated under Section 59 of the IPRA Law and its implementing rules. b) DENR Memo Circular No. 2007-08 issued on 13 July 2007 reiterates in effect the intent of
the MOA and reinforces the role of the ECC/CNC as a guidance document to other agencies
Section 3(d), Article I of DAO 2003-03 defines an ECC in this wise: and LGUs, as follows:

SECTION 3. Definition of Terms. — i) "No permits and/or clearances issued by other National Government Agencies and Local
Government Units shall be required in the processing of ECC or CNC applications.
For the purpose of this Order, the following definitions shall be applied:
ii) The findings and recommendations ofthe EIA shall be transmitted to relevant government
xxxx agencies for them to integrate in their decision making prior to the issuance of clearances,
permits and licenses under their mandates.
d. Environmental Compliance Certificate (ECC) — document issued by the DENR/EMB after
a positive review of an ECC application, certifying that based on the representations of the iii) The issuance of an ECC or CNC for a project under the EIS System does not exempt the
proponent, the proposed project or undertaking will not cause significant negative Proponent from securing other government permits and clearances as required by other laws.
environmental impact. The ECC also certifies that the proponent has complied with all the The current practice of requiring various permits, clearancesand licenses only constrains the
requirements of the EIS System and has committed to implement its approved Environmental EIA evaluation process and negates the purpose and function of the EIA."
Management Plan. The ECC contains specific measures and conditions that the project
proponent has to undertake beforeand during the operation of a project, and in some cases, iv) Henceforth, all related previous instructions and other issuances shall be made consistent
during the project's abandonment phase to mitigate identified environmental impacts. with the Circular.

In turn, Section 1.0, paragraphs 3 and 6 of the Revised Manual provide, in part: c) "Permits, licenses and clearances" are inclusive of other national and local government
approvals such as endorsements, resolutions, certifications, plans and programs, which have to
3) Purpose of the EIA Process be cleared/approved or other government documents required within the respective mandates
and jurisdiction of these agencies/LGUs.
As a basic principle, EIA is used to enhance planning and guide decisionmaking. In this
Manual, EIA is primarily presented in the context of a requirement to integrate environmental xxxx
concerns in the planning process of projects at the feasibility stage. Through the EIA Process,
adverse environmental impacts of proposed actions are considerably reduced through a f) The final decision whether a project will be implemented or not lies either with the LGUs
reiterative review process of project siting, design and other alternatives, and the subsequent who have spatial jurisdiction over the project or with the lead government agency who has
formulation of environmental management and monitoring plans. A positive determination by sectoral mandate to promote the government program where the project belongs, e.g. DOE for
the DENR-EMB results to the issuance of an Environmental Compliance Commitment (ECC) energy projects; DENR-MGB for mining projects.(Emphasis supplied)
 FINALS NATRES CASE PAJE vs CASINO 35
3. There was no indigenous community within the vicinity of the project area as stated in RP
As can be seen, the issuance of the ECC does not, by and of itself, authorize the Energy’s EIS.
implementation of the project. Although it is indispensable before the covered project can be
commenced, asper Section 4 of PD 1586,the issuanceof the ECC does not, as of yet, result 4. The land where the project is located was subsequently classified as industrial by the
inthe implementation of the project. Rather, the ECC is intended to, among others, provide SBMA. 5. The scoping/procedural screening checklist classified as "not relevant" the issue of
guidance or act as a decision-making tool to other government agencies and LGUs which have indigenous people.
the final authority to grant licenses or permits, such as building permits or licenses to operate,
that will ultimately result in, or authorize the implementation of the project or the conduct of 6. Ms. Mercado, who was part of the team which prepared the EIS, testified that she visited the
specific activities. project site ten or more times and did not see any Aeta communities there.

As a consequence, we find that the CNO requirement under Section 59 of the IPRA Law is not 7. Mr. Evangelista testified that the project site used to be a firing range of the U.S. Armed
required to be obtained prior to the issuance of an ECC. As previously discussed, Section 59 Forces which would make it impossible to be a settlement area of indigenous communities.
aims to forestall the implementation of a project that may impair the right of ICCs/IPs totheir
ancestral domains, by ensuring or verifying that a project will not overlap with any ancestral 8. Atty. Rodriguez stated that the project site is not covered by a CADT and that from the start
domain prior to its implementation. However, because the issuance of an ECC does not result of negotiations on the LDA, the SBMA Ecology Center verified with the NCIP that there was
in the implementation of the project, there is no necessity to secure a CNO prior to an ECC’s no application for said area to be covered by a CADT.
issuance as the goal orpurpose, which Section 59 seeks to achieve, is, at the time of the
issuance of an ECC, not yet applicable. RP Energy further argues that, in any case, as a matter of prudence, it secured a CNO from the
NCIP. On October 31, 2012, the NCIP issued the subject CNO over the project site, which
In sum, we find that the ECC is not the license or permit contemplated under Section 59 of the should erase any doubt as to whether it overlaps with an ancestral domain.
IPRA Law and its implementing rules. Hence, there is no necessity to secure the CNO under
Section 59 before an ECC may be issued and the issuance of the subject ECC without first Upholding the arguments of the Casiño Group, the appellate court ruled that SBMA failed to
securing the aforesaid certification does not render it invalid. comply with the CNO requirement and, thus, the LDA entered into between SBMA and RP
Energy is invalid. It rejected the reasons given by SBMA and RP Energy, to wit:
V.
1. RP Energy’s reliance on its own field investigation that no indigenous community was
Whether the Certificate of Non-Overlap (CNO), under Section 59 of the IPRA Law, is a found within the vicinity is unavailing because it was not the field investigation by the NCIP
precondition to the consummation of the Lease and Development Agreement (LDA) between required by the IPRA Law.
SBMA and RP Energy and the lack of its prior issuance rendered the LDA invalid.
2. RP Energy acknowledged that Aetas were among the earliest settlers in the municipality
We now turn to the applicability of Section 59 of the IPRA Law to the LDA entered into where the project will be built. Hence, it was not clearly shown that in 2008, at the time the
between the SBMA and RP Energy on June 8, 2010. Similar to the ECC, the LDA was entered LDA was entered into, there were no indigenouscommunities in the project site.
into prior to the issuance ofthe CNO on October 31, 2012.
3. SBMA’s representation that the project site is industrial relies on a letter dated March 5,
Before this Court, SBMA and RP Energy reiterate their arguments on why the CNO is no 2008 and the scoping checklist, which are hearsay evidence.
longer necessary in the instant case, to wit:
4. The statements of Atty. Rodriguez have no probative value because he is not an officer of
1. Prior to entering into the LDA withRP Energy, SBMA entered into a lease agreement with SBMA Ecology Center oran officer of NCIP.
HHIC206 -Philippines, Inc. and a CNO was already issued therefor which, for all intents and
purposes, is applicable to the area leased by RP Energy being part of contiguous lots in 5. At the time the CNO was issued on October 31, 2012, and the field investigation relative
Redondo Peninsula. thereto was conducted by the NCIP, the project site no longer reflected the actual condition on
December 22, 2008 when the LDA was entered into because the households which occupied
2. The site of the power plant project is very distant from the boundaries of the lone area at the the site had already been relocated by then.
Subic Bay Freeport Zone covered by an Aeta Community’s Certificate of Ancestral Domain
Title (CADT). 6. SBMA, prior to entering into a lease agreement with HHIC, secured a CNO, but oddly did
not do the same with respect to the lease agreement with RP Energy, considering that both
 FINALS NATRES CASE PAJE vs CASINO 36
leases cover lands located within the same peninsula. RP Energy appears to have been activities, perform rituals, or carry out some other activities, should be reasonably expected to
accorded a different treatment. secure the CNO prior to consummating the planned lease with third persons.

7. The CNO issued in favor of HHIC cannot justify the lack of a CNO for the power plant Even if the indigenous community does not actuallyreside on the proposed lease site, the
project because the two projects are situated in different locations: the HHIC project is located government agency would still be required to obtain the CNO preciselyto rule out the
in Sitio Agusuhin,while the power plant project is located in Sitio Naglatore. possibility that the proposed lease site encroaches upon an ancestral domain. The reason for
this is that an ancestral domain does not only cover the lands actually occupied by an
While we agree with the appellate court that a CNO should have been secured prior to the indigenous community, but all areas where they have a claim of ownership, through time
consummation of the LDA between SBMAand RP Energy, and not after, as was done here, we immemorial use, such as hunting, burial or worship grounds and to which they have traditional
find that, under the particular circumstances of this case, the subsequent and belated access for their subsistence and other traditional activities.208
compliance withthe CNO requirement does not invalidate the LDA.
The wording of the law itself seems to presuppose that if the concession, lease, license or
For convenience, and as starting point of ouranalysis, we reproduce Section 59 of the IPRA production-sharing agreement is over natural resources, then the CNO should be first obtained.
Law below: This is because the lastterm, "production-sharing agreement," normally refers to natural
resources. But the problem arises as to what should be considered "natural resources"; for a
SEC. 59. Certification Precondition. All departments and other governmental agencies shall vacant lot, nearPadre Faura Street, or a forest land, in Mt. Banahaw, could both beconsidered
henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or as "natural resources," depending on the restrictive or expansive understanding of that term.
lease, or entering into any productionsharing agreement, without prior certification from the
NCIP that the area affected does not overlap with any ancestral domain.Such certification shall After due consideration, we find that the proper rule of action, for purposes of application of
only be issued after a field-based investigation is conducted by the Ancestral Domains Office Section 59, is that all government offices should undertake proper and reasonable diligence in
of the area concerned: Provided, That no certification shall be issued by the NCIP without the making a preliminary determination on whether to secure the CNO, bearing in mind the
free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no primordial State interest in protecting the rights of ICCs/IPs to their ancestral domains. They
department, government agency or government-owned or -controlled corporation may issue should consider the nature and location of the areas involved; the historical background of the
new concession, license, lease, or production sharing agreement while there is a pending aforesaid areas relative to the occupation, use or claim of ownership by ICCs/IPs; the present
application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or and actual condition of the aforesaid areas likethe existence of ICCs/IPs within the area itself
suspend, in accordance with this Act, any project that has not satisfied the requirement of this or within nearby territories; and such other considerations that would help determine whether a
consultation process. (Emphasis supplied) CNO should be first obtained prior to granting a concession, lease, license or permit, or
entering into a production-sharing agreement.
The law is clear but its actual operation or application should not be interpreted beyond the
bounds of reason or practicality. If there are circumstances that indicate that a claim of ownership by ICCs/IPs may be present
or a claim of ownership may be asserted in the future, no matter how remote, the proper and
We explain. prudent course ofaction is to obtain the CNO. In case of doubt, the doubt should be resolved in
favor of securing the CNO and, thus, the government agency is under obligation tosecure the
Indeed, a CNO is required prior to the grant of a lease by all government agencies, including aforesaid certification in order to protect the interests and rights of ICCs/IPs to their ancestral
the SBMA. Again, the evident intention is to prevent the impairment of the right of ICCs/IPs domains. This must be so if we are to accord the proper respect due to, and adequately
to their ancestral domains. A lease, such as the LDA under consideration, would result in, safeguard the interests and rights of, our brothers and sisters belonging to ICCs/IPs in
among others, granting RP Energy the right to the use and enjoyment of the project site to the consonance with the constitutional policy209 to promote and protect the rights of ICCS/IPs as
exclusion of third parties.207 As such, the lease could conceivably encroach on an ancestral fleshed out in the IPRA Law and its implementing rules.
domain if the CNO is not first obtained.
In the case at bar, we find, applying this rule of action, that the SBMA should have first
However, implicit in the operation of Section 59 is the practical reality that the concerned secured a CNO before entering into the LDA with RP Energy for the following reasons.
government agency must make a preliminary determinationon whether or not to obtain the
required certification in the first place. To expound, a government agency, which wishes to First, the Subic area is historicallyknown to be the home of our brothers and sisters belonging
lease part of its property located near Padre Faura Street, Manila City could not, and should to the Aeta communities. In particular, the EIS210 itself of RP Energy noted that Aeta
not be reasonably expected to obtain the CNO, as it is obviously inapplicable to its planned communities originally occupiedthe proposed project site of the power plant. Thus, even if we
lease. In contrast, a government agency, which intends to lease a property in a valley or assume that, at the time of the ocular inspection of the proposed project site in 2008, there
mountainous region, where indigenous communities are known to reside, conduct hunting were no Aeta communities seen thereat, as claimed by RP Energy, the exercise of reasonable
 FINALS NATRES CASE PAJE vs CASINO 37
prudence should have moved SBMA and RP Energy to secure a CNO in order to rule out the request because, as we have discussed, SBMA had the obligation, given the surrounding
possibility that the project site may overlap with an ancestral domain. This is especially so, in circumstances, to secure a CNO in order to rule out the possibility that the project site
view of the observation previously made, that lack of actual occupation by an indigenous overlapped with an ancestral domain.
community ofthe area does not necessarily mean that it is not a part of anancestral domain
because the latter encompasses areas that are not actually occupied by indigenouscommunities All in all, we find, applying the foregoing rule of action,that SBMA should have secured a
but are used for other purposes like hunting, worship or burial grounds. CNO before entering into the LDA with RP Energy. Considering that Section 59 is a
prohibitory statutory provision, a violation thereof would ordinarily result in the nullification
Second, SBMA and RP Energy claim that the SBMA Ecology Center verified with the NCIP of the contract.212 However, we rule that the harsh consequences of such a ruling should not
that the project site does not overlap with an ancestral domain. However, the person, who be applied to the case at bar.
allegedly did the verification, and the officer from the NCIP, who was contacted in this alleged
verification, were not presented in court. Assuming that this verification did take place and The reason is that this is the first time that we lay down the foregoing rule of action so much
that the SBMA Ecology Center determined that there is no pendingapplication for a CADT so that it would be inequitable to retroactively apply its effects with respect to the LDA
covering the project site and that the presently recognized CADT of Aeta communities is too entered into between SBMA and RPEnergy. We also note that, under the particular
far away from the project site, it still does not follow that the CNO under Section 59 should circumstances of this case, there is no showing that SBMA and RP Energy had a deliberate or
have been dispensed with. The acts of individual members ofa government agency, who ill intent to escape, defeat or circumvent the mandate of Section 59 of the IPRA Law. On the
allegedly checked with the NCIP that the project site does not overlap with an ancestral contrary, they appear to have believed in good faith, albeiterroneously, that a CNO was no
domain, cannot substitute for the CNO required by law. The reason is obvious. Such posture longer needed because of the afore-discussed defenses they raised herein. When the matter of
would circumvent the noble and laudable purposes of the law in providing the CNO as the lack of a CNO relative to the LDA was brought to their attention, through the subject Petition
appropriate mechanism in order to validly and officially determine whether a particular project for Writ ofKalikasan filed by the Casiño Group, RP Energy, with the endorsement of SBMA,
site does not overlap with an ancestral domain. It would open the doors to abuse because a promptly undertook to secure the CNO, which was issued on October 31, 2012 and stated that
government agency can easily claim that it checked with the NCIP regarding any application the project site does not overlap with any ancestral domain.213
for an ancestral domain over a proposed project site while stopping short of securing a CNO.
To reiterate, the legally mandated manner to verify if a project site overlaps with an ancestral Thus, absent proof to the contrary, weare not prepared to rule that SBMA and RP Energy
domain is the CNO,and not through personal verification by members of a government agency acted inbad faith or with inexcusable negligence, considering that the foregoing rule of action
with the NCIP. has not heretofore been laiddown by this Court. As a result, we hold that the LDA should
notbe invalidated due to equitable considerations present here.
Third, that the project site was formerlyused as the firing range of the U.S. Armed Forces does
not preclude the possibility that a present orfuture claim of ancestral domain may be made By so ruling, we clarify that we reject RP Energy’s claim that the belated submission of the
over the aforesaid site. The concept of an ancestral domain indicates that, even if the use ofan CNO is an "over compliance" on its part. Quite the contrary, as we have discussed, the CNO
area was interrupted by the occupation of foreign forces, it may still be validly claimed to be should have been first secured given the surrounding circumstances of this case.
an ancestral domain.211
In the same vein, we reject SBMA’s argument thatthe belated application for, and submission
Fourth, that the project site was subsequently classified by the SBMA as forming part of an of the CNO cured whatever defect the LDA had. We have purposely avoided a ruling to the
industrial zone does not exempt it from the CNO requirement. The change in the classification effect that a CNO secured subsequent to the concession, lease, license, permit or production-
of the land is not an exception to the CNO requirement under the IPRA Law. Otherwise, sharing agreement will cure the defect. Such a ruling would lead to abuse of the CNO
government agencies can easily defeat the rights of ICCs/IPs through the conversion of land requirement since the defect can be cured anyway by a subsequent and belated application for
use. a CNO. Government agencies and third parties, either through deliberate intent or negligence,
may view it as an excuse not to timely and promptly secure the CNO, even when the
Fifth, SBMA argues that the CNO issued to HHIC should, for all intents and purposes, be circumstances warrant the application for a CNO under the aforediscussed rule of action, tothe
applicable to RP Energy. However, ascorrectly ruled by the appellate court, the CNO issued to damage and prejudice of ICCs/IPs. Verily, once the concession, lease, license or permit is
HHIC’s shipyard cannot be extended to RP Energy’s project site because they involve two issued, or the agreement is entered into without the requisite CNO, consequent damages will
different locations although found within the same land mass. The CNO issued in favor of have already occurred if it later turns out that the site overlaps with anancestral domain. This is
HHIC clearly states that the findings in the CNO are applicable only to the shipyard location so even if the ICCs/IPs can have the project stopped upon discovery thatit overlapped with
of HHIC. Last, the steps taken by SBMA, in securing a CNO prior to its lease agreement with their ancestral domain under the last proviso214 of Section 59. To prevent this evil,
HHIC, was the proper and prudent course of action that should have been applied to the LDA compliance with the CNO requirement should be followed through the aforediscussed rule of
with RP Energy. It does notmatter that HHIC itself asked for the CNO prior to entering into a action.
lease agreement with SBMA, as claimed by SBMA, while RP Energy did not make such a
 FINALS NATRES CASE PAJE vs CASINO 38
In sum, we rule that a CNO should have been secured prior to the consummation of the LDA
between SBMA and RP Energy. However, considering that this is the first time we lay down SECTION 27. Prior Consultations Required. — No project or program shall be implemented
the rule of action appropriate to the application of Section 59, we refrain from invalidating the by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof
LDA due to equitable considerations. are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
VI. appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution. (Emphasis supplied)
Whether compliance with Section 27, inrelation to Section 26, of the LGC (i.e., approval of
the concerned sanggunianrequirement) is necessary prior to the implementation of the power In the case at bar, the Casiño Group only questions the alleged lack of the prior approval of the
plant project. concerned sanggunians under Section 27 of the LGC. Thus, we shall limit our discussion to
the resolution of this issue. (Parenthetically, we note that prior consultations, as required by
Sustaining the arguments ofthe Casiño Group, the appellate court ruled that the subject project Section 26 of the LGC, appear to have been complied with. This may begleaned from the EIS
cannot beconstructed and operated until after the prior approval of the concerned of RPEnergy which contains the documentation of the extensive public consultations held,
sanggunianrequirement, under Section 27 of the LGC, is complied with. Hence, the ECC and under the supervision of the DENR-EMB, relative to the subject project, as required by the
LDA could not be validly granted and entered into without first complying with the aforesaid EIA process,215 as well as the socialacceptability policy consultations conducted by the
provision. It held that all the requisites for the application of the aforesaid provision are SBMA, which generated the document entitled "Final Report: Social Acceptability Process for
present. As to the pertinent provisions of RA 7227 or "TheBases Conversion and Development RP Energy, Inc.’s 600-MW Coal Plant Project," as noted and discussed in an earlier
Act of 1992," which grants broad powers of administration to the SBMA over the Subic subsection.216)
Special Economic Zone(SSEZ), the appellate court ruled that RA 7227 contains a provision
recognizing the basic autonomy ofthe LGUs which joined the SSEZ. Thus, the LGC and RA We also note that the Casiño Group argues that the approval of the concerned sanggunian
7227should be harmonized whereby the concerned sanggunian’spower to approve under requirement was necessary prior to the issuance of the ECC and the consummation of the
Section 27 must be respected. LDA; the absence of which invalidated the ECC and LDA.

The DENR impliedly agrees with the Casiño Group that compliance with Section 27 is still We shall no longer discuss at length whether the approval of the concerned sanggunian
required but without clearly elaborating its reasons therefor. requirement must be complied with prior to the issuance of an ECC. As discussed in an earlier
subsection, the issuance of an ECC does not, by itself, result in the implementation of the
The SBMA and RP Energy, however, argue that the prior approval of the concerned project. Hence, the purpose or goal of Sections 26 and 27 of the LGC,like Section 59 of the
sanggunianrequirement, under Section 27, is inapplicable to the subject project because it is IPRA Law, does not yet obtain and, thus, the ECC may be issued evenwithout prior
located within the SSEZ. The LGC and RA 7227 cannot be harmonized because of the clear compliance with Sections 26 and 27 of the LGC.
mandate of the SBMA to govern and administer all investments and businesses within the
SSEZ. Hence, RA 7227 should be deemed as carving out an exception to the prior approval of We, thus, limit the discussion as to whether the approval of the concerned sanggunian
the concerned sanggunianrequirement insofar as the SSEZ is concerned. requirement should have been complied with prior to the consummation of the LDA,
considering that the LDA is part of the implementation of the subject project and already vests
We agree with the SBMA and RP Energy. in RP Energy the right to the use and enjoyment of the project site, asin fact horizontal
clearing activities were already undertaken by RP Energy at the project site by virtue of the
Preliminarily, we note that Sections 26 and 27 of the LGC contemplate two requirements: (1) LDA.
prior consultations and (2) prior approval of the concerned sanggunian,viz:
The prior approval of the concerned sanggunian requirement is an attribute and
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological implementation of the local autonomy granted to, and enjoyed by LGUs under the
Balance. — It shall be the duty of every national agency or government-owned or -controlled Constitution.217 The LGU has the duty to protect its constituents and interests in the
corporation authorizing or involved in the planning and implementation of any project or implementation of the project. Hence, the approval of the concerned sanggunian is required by
program that may cause pollution, climatic change, depletion of non-renewable resources, loss law to ensure thatlocal communities partake in the fruits of their own backyard.218
of cropland, rangeland, or forest cover, and extinction of animal or plant species, to consult
with the local government units, non governmental organizations, and other sectors concerned For Section 27, in relation to Section 26, to apply, the following requisites must concur: (1) the
and explain the goals and objectives of the project or program, its impact upon the peopleand planning and implementation of the project or program is vested in a national agency or
the community in terms of environmental or ecological balance, and the measures that will be government-owned and-controlled corporation, i.e., national programs and/or projects which
undertaken to prevent or minimize the adverse effects thereof. (Emphasis supplied) are to be implemented in a particular local community; and (2) the project or program may
 FINALS NATRES CASE PAJE vs CASINO 39
cause pollution, climatic change, depletion of non-renewable resources, loss of cropland,
rangeland, or forest cover, extinction of animal or plant species, or call for the eviction of a Subsequently, the aforesaid sanggunians submitted their respective resolutions of concurrence
particular group of people residing in the locality where the project will be implemented.219 and the President issued Presidential Proclamation No. 532, Series of 1995, defining the metes
and bounds of the SSEZ.
In the case at bar, the two requisites are evidently present: (1) the planning and
implementation of the subject project involves the Department of Energy, DENR, and SBMA; In Executive Secretary v. Southwing Heavy Industries, Inc.,222 we described the concept of
and (2) the subject project may cause pollution, climatic change, depletion of non-renewable SSEZ as a Freeport:
resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant
species,or call for the eviction of a particular group of people residing in the locality where the The Freeport was designed to ensurefree flow or movement of goods and capital within a
project will be implemented. Hence, Section 27 of the LGC should ordinarily apply. portion of the Philippine territory in order to attract investors to invest their capital in a
business climate with the least governmental intervention. The concept ofthis zone was
It is not disputed that no approval was sought from the concerned sangguniansrelative to the explained by Senator Guingona in this wise:
subject project.1a\^/phi1 Whatis more, the affected LGUs have expressed their strong
oppositions to the project through various sanggunian resolutions.220 However, it is also Senator Guingona. Mr. President, the special economic zone is successful in many places,
undisputed that the subject project is located within the SSEZ and, thus, under the territorial particularly Hong Kong, which is a free port. The difference between a special economic zone
jurisdiction of the SBMA pursuant to RA 7227. and an industrial estate is simply expansive in the sense that the commercial activities,
including the establishment of banks, services, financial institutions, agro-industrial activities,
Thus, we are tasked to determine the applicability of the prior approval of the concerned maybe agriculture to a certain extent.
sanggunian requirement, under Section 27 of the LGC, relative to a project within the
territorial jurisdiction of the SBMA under RA 7227. This delineates the activities that would have the least of government intervention, and the
running of the affairs of the special economic zone would be run principally by the investors
RA 7227 was passed on March 13, 1992 in the aftermath of the Mount Pinatubo eruption and themselves, similar toa housing subdivision, where the subdivision owners elect their
the closure of the Subic Naval Base ofthe U.S. Armed Forces. It sought to revivethe affected representatives to run the affairs of the subdivision, toset the policies, to set the guidelines.
areas by creating and developing the SSEZ into a "self-sustaining industrial, commercial,
financial and investment center to generate employment opportunities in and around the zone We would like to see Subic area converted into a little Hong Kong, Mr. President, where there
and to attract and promote productive foreign investments."221 The SSEZ covered the City of is a hub of free port and free entry, free duties and activities to a maximum spur generation of
Olangapo and Municipality of Subic in the Province ofZambales and the lands and its investment and jobs.
contiguous extensions occupied by the former U.S. Naval Base, which traversed the territories
of the Municipalities of Hermosa and Morong in the Province of Bataan. Under Section 12 of While the investor is reluctant to come in the Philippines, as a rule, because of red tape and
RA 7227, the creation of the SSEZ was made subject to the concurrence by resolution of the perceived delays, we envision this special economic zone to be an area where there will be
respective sanggunians of the City of Olongapo and the Municipalities of Subic, Morong and minimum government interference.
Hermosa, viz:
The initial outlay may not only come from the Government or the Authority as envisioned
SECTION 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of here, but from them themselves, because they would be encouraged to invest not only for the
the sangguniang panlungsod of the City of Olongapo and the sangguniang bayanof the land but also for the buildings and factories. As long as they are convinced that in such an area
Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic they can do business and reap reasonable profits, thenmany from other parts, both local and
and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, foreign, would invest, Mr. President.223 (Emphasis in the original)
Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous
extensions as embraced, covered, and defined by the 1947 Military Bases Agreement between To achieve the above-mentioned purposes, the law created SBMA to administer the SSEZ. In
the Philippines and the United States of America as amended, and within the territorial the process, SBMA was granted broad and enormous powers as provided for under Section
jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter 13(b) of RA 7227:
referred to as the Subic Special Economic Zone whose metes and bounds shall be delineated in
a proclamation to be issued by the President of the Philippines. Within thirty (30) days after Sec. 13. The Subic Bay Metropolitan Authority. –
the approval of this Act, each local government unit shall submit its resolution of concurrence
to join the Subic Special Economic Zone to the office of the President. Thereafter, the xxxx
President of the Philippines shall issue a proclamation defining the metes and bounds of the
Zone as provided herein.
 FINALS NATRES CASE PAJE vs CASINO 40
(b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay
Metropolitan Authority, otherwise knownas the Subic Authority, shall have the following (10) To adopt and implement measures and standards for environmental pollution control of
powers and function: (1) To operate, administer, manage and develop the ship repair and ship all areas within its territory, including but not limited to all bodies of water and to enforce the
building facility, container port, oil storage and refueling facility and Cubi Air Base within the same. For which purpose the Subic Authority shall create an Ecology Center; and
Subic Special Economic and Free-port Zone as a free market in accordance with the policies
set forth in Section 12 of this Act; (11) To exercise such powers as may be essential, necessary or incidental to the powers
granted to it hereunder as well as to carry out the policies and objectives of this Act.
(2) To accept any local or foreign investment, business or enterprise, subject only to such rules (Emphasis supplied) The Implementing Rules of RA 7227 further provide:
and regulations to be promulgated by the Subic Authority in conformity with the policies of
the Conversion Authority without prejudice to the nationalization requirements provided for in Sec. 11. Responsibilities of the SBMA. Other than the powers and functions prescribed in
the Constitution; Section 10 of these Rules, the SBMA shall have the following responsibilities:

(3) To undertake and regulate the establishment, operation and maintenance of utilities, other (a) The SBMA shall exercise authority and jurisdiction over all economic activity within the
services and infrastructure in the Subic Special Economic Zone including shipping and related SBF224
business, stevedoring and port terminal services or concessions, incidental thereto and airport
operations in coordination with the Civil Aeronautics Board, and to fix just and reasonable xxxx
rates, fares charges and other prices therefor;
(f) Consistent with the Constitution, the SBMA shall have the following powers to enforce the
(4) To construct, acquire, own, lease, operate and maintain on its own or through contract, law and these Rules in the SBF:
franchise, license permits bulk purchase from the private sector and build-operate transfer
scheme or joint-venture the required utilities and infrastructurein coordination with local xxxx
government units and appropriate government agencies concerned and inconformity with
existing applicable laws therefor; (8) to issue, alter, modify, suspend or revoke for cause, any permit, certificate, license, visa or
privilege allowed under the Act or these Rules;
(5) To adopt, alter and use a corporate seal; to contract, lease, sell, dispose, acquire and own
properties; to sue and be sued in order to carry out its duties and functions as provided for in xxxx
this Act and to exercise the power of eminent domain for public use and public purpose;
(11) to promulgate such other rules, regulations and circulars as may be necessary, proper or
(6) Within the limitation provided by law, to raise and/or borrow the necessary funds from incidental to carry out the policies and objectives of the Act, these Rules, as well as the powers
local and international financial institutions and to issue bonds, promissory notes and other and duties of the SBMA thereunder.225
securities for that purpose and to secure the same by guarantee, pledge, mortgage deed of trust,
or assignment of its properties held by the Subic Authority for the purpose of financing its As can be seen, the SBMA was given broad administrative powers over the SSEZ and these
projects and programs within the framework and limitation of this Act; necessarily include the power to approve or disapprove the subject project, which is within its
territorial jurisdiction. But, as previously discussed, the LGC grants the concerned
(7) To operate directly or indirectly or license tourism related activities subject to priorities sangguniansthe power to approve and disapprove this same project. The SBMA asserts that its
and standards set by the Subic Authority including games and amusements, except horse approval of the project prevails over the apparent disapproval of the concerned sanggunians.
racing, dog racing and casino gambling which shall continue to be licensed by the Philippine There is, therefore, a real clash between the powers granted under these two laws.
Amusement and Gaming Corporation (PAGCOR) upon recommendation of the Conversion
Authority; to maintain and preserve the forested areas as a national park; Which shall prevail?

(8) To authorize the establishment ofappropriate educational and medical institutions; Section 12 of RA 7227 provides:

(9) To protect, maintain and develop the virgin forests within the baselands, which will be Sec. 12. Subic Special Economic Zone. x x x
proclaimed as a national park and subject to a permanent total log ban, and for this purpose,
the rules and regulations of the Department of Environment and Natural Resources and other The abovementioned zone shall be subjected to the following policies:
government agencies directly involved in the above functions shall be implemented by the
Subic Authority;
 FINALS NATRES CASE PAJE vs CASINO 41
(a) Within the framework and subject to the mandate and limitations of the Constitution and investment center. Hence, the decision of the SBMA would prevail over the apparent
the pertinent provisions of the Local Government Code, the Subic Special Economic Zone objections of the concerned sanggunians of the LGUs.
shall bedeveloped into a self-sustaining, industrial, commercial, financial and investment
center to generate employment opportunities in and around the zone and to attract and promote Significantly, the legislative deliberations on RA 7227, likewise, support and confirm the
productive foreign investments; foregoing interpretation. As earlier noted, Section 13 b(4) of RA 7227 provides:

xxxx Sec. 13. The Subic Bay Metropolitan Authority. –

(i) Except as herein provided, the local government units comprising the Subic Special xxxx
Economic Zone shall retain their basic autonomy and identity. The cities shall be governed by
their respective charters and the municipalities shall operate and function in accordance with (b) Powers and functions of the Subic Bay Metropolitan Authority - The Subic Bay
Republic Act No. 7160, otherwise known as the Local Government Code of 1991. (Emphasis Metropolitan Authority, otherwise knownas the Subic Authority, shall have the following
supplied) powers and function: x x x x

This section sets out the basic policies underlying the creation of the SSEZ. Indeed, as noted (4) To construct, acquire, own, lease, operate and maintain on its own or through contract,
by the appellate court, Section 12(i) expressly recognizes the basic autonomy and identity of franchise, license permits bulk purchase from the private sector and build-operate transfer
the LGUscomprising the SSEZ. However, the clause "[e]xcept as herein provided" scheme or joint-venture the required utilities and infrastructure in coordination with local
unambiguously provides that the LGUs do not retain their basic autonomy and identitywhen it government units and appropriate government agencies concerned and in conformity with
comes to matters specified by the law as falling under the powers, functions and prerogatives existing applicable laws therefor;
of the SBMA.
In the Senate, during the period of amendments, when the provision which would eventually
In the case at bar, we find that the power to approve or disapprove projects within the SSEZ is become the afore-quoted Section 13 b(4) of RA 7227 was under consideration, the following
one such power over which the SBMA’s authority prevails over the LGU’s autonomy. Hence, exchanges took place:
there isno need for the SBMA to secure the approval of the concerned sangguniansprior to the
implementation of the subject project. Senator Laurel. Mr. President.

This interpretation is based on the broad grant of powers to the SBMA over all administrative The President. Senator Laurel is recognized.
matters relating to the SSEZ under Section 13 of RA 7227, as afore-discussed. Equally
important, under Section 14, other than those involving defense and security, the SBMA’s Senator Laurel. Relative to line 27 up to line 31 of page 16, regarding the provision to the
decision prevails in case of conflict between the SBMA and the LGUs in all matters effect that the Authoritywill have the following functions: "to construct, acquire, own,
concerning the SSEZ, viz.: etcetera," that is all right.

Sec. 14. Relationship with the Conversion Authority and the Local Government Units. My motion is that we amend this particular line, starting from the word "structures", by
deleting the words that follow on line 31, which states: "in coordination with local government
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the unitsand", and substitute the following in place of those words: "SUBJECT TO THE
Subic Authority shall exercise administrative powers, rule-making and disbursement of funds APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL GOVERNMENT
over the Subic Special Economic Zonein conformity with the oversight function of the UNITS AND IN COORDINATION WITH."
Conversion Authority.
So, this paragraph will read, as follows: "to construct, own, lease, operate, and maintain on its
(b) In case of conflict between the Subic Authority and the local government units concerned own or through contract, franchise, license permits, bulk purchase from the private sector and
on matters affecting the Subic Special Economic Zone other than defense and security, the build-operate-transfer scheme or joint venture the required utilities and infrastructure
decision of the SubicAuthority shall prevail. (Emphasis supplied) SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN coordination with appropriate government agencies
Clearly, the subject project does not involve defense or security, but rather business and concerned and in conformity with existing applicable laws therefor."
investment to further the development of the SSEZ. Such is in line with the objective of RA
7227 to develop the SSEZ into a self-sustaining industrial, commercial, financial and The President. What does the Sponsor say?
 FINALS NATRES CASE PAJE vs CASINO 42
Senator Shahani. I believe this would cripple the Authority. I would like to remind our official of a particular government unit, such as a town or municipality, participate as a
Colleagues that in the Board of Directors, the representatives of the local government units member of the Board of Directors of this particular zone.
that agree to join with the Subic Special Economic Zone will be members of the Board so that
they will have a say, Mr. President. But if we say "subject," that is a very strong word. It really The President. The ruling of the Chair stands. The division of the House is hereby directed.
means that they will be the ones to determine the policy.
As many as are infavor of the Laurel amendment, please raised (sic) their right hands. (Few
So, I am afraid that I cannot accept this amendment, Mr. President. Senators raised their right hands.)

Senator Laurel. May I respond or react, Mr. President. As many as are against the said amendment, please do likewise. (Several Senators raised their
right hands.)
The President. Yes.
The amendment is lost.226 (Emphasis supplied)
Senator Laurel. The Constitution is there,very categorical inthe promotion and encouragement
of local autonomy, and mandating Congress to enact the necessary Local Government Code Indubitably, the legislature rejected the attempts to engraft Section 27’s prior approval of the
with emphasis on local autonomy. concerned sanggunian requirement under the LGC into RA 7227. Hence, the clear intent was
to do awaywith the approval requirement of the concerned sangguniansrelative to the power
We have now Section 27 of the new Local Government Code which actually provides that for ofthe SBMA to approve or disapprove a project within the SSEZ.
every projectin any local government territory, the conformity or concurrence of the
Sanggunian of every such local government unit shall be secured in the form of resolution— The power to create the SSEZ is expressly recognized in Section 117 of the LGC, viz.:
the consent of the Sanggunian.
TITLE VIII.
The President. Well, both sides have already been heard. There is the Laurel amendment that Autonomous Special Economic Zones
would make the power of the Subic Bay Metropolitan Authority to construct, acquire, own,
lease, operate and maintain on its own or through contract, franchise, license, permits, bulk SECTION 117. Establishment of Autonomous Special Economic Zones. — The establishment
purchases from private sector, buildoperate-and-transfer scheme, or joint venture, the required by law of autonomous special economic zones in selected areas of the country shall be subject
utilities and infrastructure, subject to approval by the appropriate Sanggunian of the local to concurrence by the local government units included therein.
government concerned.
When the concerned sanggunians opted to join the SSEZ, they were, thus, fully aware that this
This amendment to the amendment has been rejected by the Sponsor. So, we are voting now would lead to some diminution of their local autonomy in order to gain the benefits and
on this amendment. privileges of being a part of the SSEZ.

As many as are in favor of the Laurel amendment, say Aye. (Few Senators: Aye.) Further, the point of Senator Shahani that the representation of the concerned LGUs in the
Board of Directors will compensate for the diminution of their local autonomy and allow them
Those who are against the said amendment, say Nay. (Several Senators: Nay.) to be represented in the decision-making of the SBMA is not lost on us. This is expressly
provided for in Section 13(c) of RA 7227, viz:
Senator Laurel. Mr. President, may I ask for a nominal voting.
SECTION 13. The Subic Bay Metropolitan Authority. —
The President. A nominal voting should beupon the request of one-fifth of the Members of the
House, but we can accommodate the Gentleman by asking for a division of the House. xxxx
Therefore, those in favor of the Laurel amendment, please raise their right hands. (Few
Senators raised their right hands.) (c) Board of Directors. — The powers of the Subic Authority shall be vested in and exercised
by a Board of Directors, hereinafter referred to as the Board, which shall be composed of
Senator Laurel. I was asking, Mr. President, for a nominal voting. The President. A nominal fifteen (15) members, to wit:
voting can be had only upon motion ofone-fifth of the Members of the Body. Senator Laurel.
That is correct, Mr. President. But this issuch an important issue being presented to us, (1) Representatives of the local government units that concur to join the Subic Special
because this question is related to the other important issue, which is: May an elected public Economic Zone;
 FINALS NATRES CASE PAJE vs CASINO 43
(2) Two (2) representatives from the National Government; ATTY. RIDON:

(3) Five (5) representatives from the private sector coming from the present naval stations, We are questioning the validity of the amendment, Your Honor.
public works center, ship repair facility, naval supply depot and naval air station; and
J. LEAGOGO:
(4) The remaining balance to complete the Board shall be composed of representatives from
the business and investment sectors. (Emphasis supplied) Which amendment?

SBMA’s undisputed claim is that, during the board meeting when the subject project was ATTY. RIDON:
approved, exceptfor one, all the representatives of the concerned LGUs were present and voted
to approve the subject project.227 Verily, the wisdom of the law creating the SSEZ; the From 2 x 150 to 1 x 300, Your Honor.
wisdom of the choice of the concerned LGUs to join the SSEZ; and the wisdom ofthe
mechanism of representation of the concerned LGUs in the decision-making process of the J. LEAGOGO:
SBMA are matters outside the scope of the power of judicial review. We can only interpret
and apply the law as we find it. Your Petition does not involve the 2 x 300 which is still pending with the DENR. Because you
still have remedies there, you can make your noise there, you can question it to your heart[’]s
In sum, we find that the implementation of the project is not subject to the prior approval of content because it is still pending
the concerned sanggunians, under Section 27 of the LGC, and the SBMA’s decision to
approve the project prevails over the apparent objections of the concerned sangguniansof the xxxx
LGUs, by virtue ofthe clear provisions of RA 7227. Thus, there was no infirmity when the
LDA was entered into between SBMA and RP Energy despite the lack of approval of the J. LEAGOGO:
concerned sanggunians. VII.
Atty. Ridon, I go back to my question. We’re not yet talking of the legal points here. I’m just
Whether the validity of the third amendment to the ECC can be resolved by the Court. talking of what are you questioning. You are questioning the 1 x 300?

The Casiño Group argues that the validity of the third amendment should have been resolved ATTY. RIDON:
by the appellate court because it is covered by the broad issues set during the preliminary
conference. Yes, Your Honor.

RP Energy counters that this issue cannot be resolved because it was expressly excluded J. LEAGOGO:
during the preliminary conference.
Because it was 2 x 150 and then 1 x 300?
The appellate court sustained the position of RP Energy and ruled that this issue was not
included in the preliminary conference so that it cannot be resolved without violating the right ATTY. RIDON:
todue process of RP Energy.
Yes, Your Honor.
We agree with the appellate court.
J. LEAGOGO:
Indeed, the issue of the validity of the third amendment to the ECC was not part of the issues
set during the preliminary conference, as it appears at that time that the application for the Up to that point?
third amendment was still ongoing. The following clarificatory questions during the aforesaid
conference confirm this, viz.: ATTY. RIDON:

J. LEAGOGO: Yes, Your Honor.

So what are you questioning in your Petition? J. LEAGOGO:

 FINALS NATRES CASE PAJE vs CASINO 44
Because there is no amended ECC yet for the 2 x 300 or 600. That’s clear enough for all of us. modifications to the original project design. The DENR rules, therefore, which permit the
modification of the original project design without the requisite EIS, are void for violating PD
ATTY. RIDON: 1151 and PD 1586.

Yes, Your Honor.228 We disagree.

Given the invocation of the right to due process by RP Energy, we must sustain the appellate Indeed, Section 4 of PD 1151 sets out the basic policy of requiring an EIS in every action,
court’s finding that the issue as to the validity of the third amendment cannot be adjudicated in project or undertaking that significantly affects the quality of the environment, viz:
this case.
SECTION 4. Environmental Impact Statements. — Pursuant to the above enunciated policies
Refutation of the Partial Dissent. and goals, all agencies and instrumentalities of the national government, including
government-owned or -controlled corporations, as well as private corporations, firms and
Justice Leonen partially dissents from the foregoing disposition on the following grounds: entities shall prepare, file and include in every action, projector undertaking which
significantly affects the quality of the environmenta detailed statement on —
(a) Environmental cases, such asa petition for a writ of kalikasan, should not, in general,be
litigated viaa representative, citizen or class suit because of the danger of misrepresenting the (a) the environmental impact of the proposed action, project or undertaking;
interests— and thus, barring future action due to res judicata— of those not actually present in
the prosecution of the case, either because they do not yet exist, like the unborn generations, or (b) any adverse environmental effect which cannot be avoided should the proposal be
because the parties bringing suit do not accurately represent the interests ofthe group they implemented;
represent or the class to which they belong. As an exception, such representative, citizen or
class suit may be allowed subject to certain conditions; and (c) alternative to the proposed action;

(b) The amendments to the ECC, granted by the DENR in favor of RP Energy, are void for (d) a determination that the short-term uses of the resources of the environment are consistent
failure to submit a new EIS in support of the applications for these amendments to the subject with the maintenance and enhancement of the long-term productivity of the same; and
ECC, and a petition for writ of kalikasanis not the proper remedy to raise a defect inthe ECC.
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding
We disagree. must be made that such use and commitment are warranted.

A. Before an environmental impact statement is issued by a lead agency, all agencies having
jurisdiction over, or special expertise on, the subject matter involved shall comment on the
Justice Leonen’s proposition that environmental cases should not, in general, be litigated via a draft environmental impact statement made by the lead agency within thirty (30) days from
representative, citizen or class suit is both novel and ground-breaking. However, it receipt of the same. (Emphasis supplied)
isinappropriate to resolve such an important issue in this case, in view of the requisites for the
exercise of our power of judicial review, because the matter was not raised by the parties so As earlier stated, the EIS was subsequently developed and strengthened through PD 1586
that the issue was not squarely tackled and fully ventilated. The proposition will entail, as which established the Philippine Environmental Impact Statement System. Sections 4 and 5 of
Justice Leonen explains, an abandonment or, at least, a modification of our ruling in the PD 1586 provide:
landmark case of Oposa v. Factoran.229 It will also require an amendment or a modification
of Section 5 (on citizen suits), Rule 2 ofthe Rules of Procedure for Environmental Cases. SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
Hence, it is more appropriate to await a case where such issues and arguments are properly Projects.1avvphi1 The President of the Philippines may, on his own initiative or upon
raisedby the parties for the consideration of the Court. recommendation of the National Environmental Protection Council, by proclamation declare
certain projects, undertakings or areas in the country as environmentally critical. No person,
B. partnership or corporation shall undertake or operate any such declared environmentally
critical project or area without first securing an Environmental Compliance Certificate issued
Justice Leonen reasons that the amendments to the subject ECC are void because the by the President or his duly authorized representative. For the proper management of said
applications therefor were unsupported by anEIS, as required by PD 1151 and PD 1586. The critical project or area, the President may by his proclamation reorganize such government
claim is made that an EIS is required by law, even if the amendment to the ECC is minor, offices, agencies, institutions, corporations or instrumentalities including the re-alignment of
because an EIS is necessary to determine the environmental impact of the proposed government personnel, and their specific functions and responsibilities.
 FINALS NATRES CASE PAJE vs CASINO 45
Because PD 1586 did not expressly provide the procedure to be followed in case of an
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the application for an amendment toa previously issued ECC, the DENR exercised its discretion,
proper land or water use pattern for said critical project(s) or area(s); (b) establish ambient pursuant to its delegated authority to implement this law, in issuing DAO 2003-30 and the
environmental quality standards; (c) develop a program of environmental enhancement or Revised Manual.
protective measures against calamituous factors such as earthquake, floods, water erosion and
others, and (d) perform such other functions as may be directed by the President from time to Justice Leonen’s argument effectively challenges the validity of the provisions in DAO 2003-
time. 30 and the Revised Manual relative to amendments to an ECC for being contrary to PD 1151
and 1586.
SECTION 5. Environmentally Non-Critical Projects. — All other projects, undertakings and
areas not declared by the President as environmentally critical shall be considered as non- We disagree.
critical and shall not be required to submit an environmental impact statement. The National
Environmental Protection Council, thru the Ministry of Human Settlements may however First, to repeat, there is nothing in PD 1586 which expressly requires an EIS for an amendment
require non-critical projects and undertakings to provide additional environmental safeguards to an ECC.
as it may deem necessary. (Emphasis supplied)
Second, as earlier noted, the proposition would constitute a collateral attack on the validity of
These laws were, in turn, implemented by DAO 2003-30 and the Revised Manual. DAO 2003-30 and the Revised Manual, which is not allowed under the premises. The Casiño
Group itself has abandoned this claim before this Court so that the issue is not properly before
As correctly noted by Justice Leonen,Presidential Proclamation No. 2146 was subsequently this Court for its resolution.
issued which, among others, classified fossil-fueled power plants as environmentally critical
projects. Third, assuming that a collateral attack on the validity of DAO 2003-30 and the Revised
Manual can be allowed in this case, the rules on amendments appear to be reasonable, absent a
In conformity with the above-quoted laws and their implementing issuances, the subject showing of grave abuse of discretion or patent illegality.
project, a coal power plant, was classified by the DENR as an environmentally critical project,
new and single. Hence, RP Energy was required to submit an EIS in support of its application Essentially, the rules take into consideration the nature of the amendment in determining the
for an ECC. RP Energy thereafter complied with the EIS requirement and the DENR, after proper Environmental Impact Assessment (EIA) document type that the project proponent will
review, evaluation and compliance with the other steps provided in its rules, issued an ECC in submit in support of its application for an amendment to its previously issued ECC. A minor
favor of RP Energy. As can be seen, the EIS requirement was duly complied with. amendment will require a less detailed EIA document type, like a Project Description Report
(PDR), while a major amendment will require a more detailed EIA document type, like an
Anent Justice Leonen’s argument thatthe subsequent amendments to the ECC were void for Environmental Performance Report and Management Plan (EPRMP) or even an EIS.230
failure to prepare and submit a new EIS relative to these amendments, it is important to note
thatPD 1586 does not state the procedure to be followed when there is an application for an The rules appear to be based on the premise that it would be unduly burden some or
amendment to a previously issued ECC. There is nothing in PD 1586 which expressly requires impractical to require a project proponent to submit a detailed EIA document type, like an EIS,
an EIS for an amendment to an ECC. for amendments that, upon preliminary evaluation by the DENR, will not cause significant
environmental impact. In particular, as applied to the subject project, the DENR effectively
In footnote 174 of the ponencia, it is stated: determined that it is impractical to requireRP Energy to, in a manner of speaking, start from
scratch by submitting a new EIS in support of its application for the first amendment to its
Parenthetically, we must mention that the validity of the rules providing for amendments to the previously issued ECC, considering that the existing EIS may be supplemented by an EPRMP
ECC was challenged by the Casiño Group on the ground that it is ultra vires before the to adequately evaluate the environmental impact of the proposed modifications under the first
appellate court. It argued that the laws governing the ECC do not expressly permit the amendment. The same reasoning may be applied to the PDR relative to the second
amendment of an ECC. However, the appellate court correctly ruled that the validity of the amendment. As previously discussed, the Casiño Group failed to provethat the EPRMP and
rules cannot be collaterally attacked. Besides,the power of the DENR to issue rules on PDR were inadequate to assess the environmental impact of the planned modifications under
amendments of an ECC is sanctioned under the doctrine of necessary implication. Considering the first and second amendments, respectively. On the contrary, the EPRMP and PDR
that the greater power todeny or grant an ECC is vested by law in the President or his appeared to contain the details of the planned modifications and the corresponding
authorized representative, the DENR, there is no obstacle to the exercise of the lesser or adjustments to bemade in the environmental management plan or mitigating measures inorder
implied power to amend the ECC for justifiable reasons. This issue was no longer raised to address the potential impacts of these planned modifications. Hence, absent sufficient proof,
before this Court and, thus, we no longertackle the same here. there is no basis to conclude that the procedure adopted by the DENR was done with grave
abuse of discretion.
 FINALS NATRES CASE PAJE vs CASINO 46
through its Environmental Management Plan, which will ensure thatthe project will operate
Justice Leonen’s proposition would effectively impose a stringent requirement of an EIS for within the limits of existing environmental laws and standards;
each and every proposed amendment to an ECC, no matter how minor the amendment may be.
While this requirement would seem ideal, in order to ensure that the environmental impact of 2. The appellate court erred when it invalidated the ECC on the ground of lack of signature of
the proposed amendment is fully taken into consideration, the pertinent laws do not, however, Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC
expressly require that such a procedure be followed.As already discussed, the DENR appear to submitted by RP Energy to the appellate court. While the signature is necessary for the
have reasonably issued DAO 2003-30 and the Revised Manualrelative to the amendment validity of the ECC, the particular circumstances of this case show that the DENR and RP
process of an ECC, by balancing practicality vis-à-vis the need for sufficient information in Energy were not properly apprised of the issue of lack of signature in order for them to present
determining the environmental impact of the proposed amendment to an ECC. In fine, the controverting evidence and arguments on this point, as the issue only arose during the course
Court cannot invalidate the rules which appear to be reasonable, absent a showing of grave of the proceedings upon clarificatory questions from the appellate court. Consequently, RP
abuse of discretion or patent illegality. Energy cannot be faulted for submitting the certified true copy of the ECC only after it learned
that the ECC had been invalidatedon the ground of lack of signature in the January 30, 2013
We next tackle Justice Leonen’s argument that a petition for certiorari,and not a writ of Decision of the appellate court. The certified true copy of the ECC, bearing the signature of
kalikasan,is the proper remedy to question a defect in an ECC. Mr. Aboitiz in the Statement of Accountability portion, was issued by the DENR-EMB, and
remains uncontroverted. It showed that the Statement of Accountability was signed by Mr.
In general, the proper procedure to question a defectin an ECC is to follow the appeal process Aboitiz on December 24, 2008. Because the signing was done after the official release of the
provided in DAO 2003-30 and the Revised Manual. After complying with the proper ECC on December 22, 2008, wenote that the DENR did not strictly follow its rules, which
administrative appeal process, recourse may be made to the courts in accordance with the require that the signing of the Statement of Accountability should be done before the official
doctrine of exhaustion of administrative remedies. However, as earlier discussed, in release of the ECC. However, considering that the issue was not adequately argued norwas
exceptional cases, a writ of kalikasan may be availed of to challenge defects in the ECC evidence presented before the appellate court on the circumstances at the time of signing, there
providedthat (1) the defects are causally linked or reasonably connected to an environmental is insufficient basis to conclude that the procedure adoptedby the DENR was tainted with bad
damage of the nature and magnitudecontemplated under the Rules on Writ of Kalikasan, and faith or inexcusable negligence. We remind the DENR, however, to be more circumspect in
(2) the case does not violate, or falls under an exception to, the doctrine of exhaustion of following its rules. Thus, we rule that the signature requirement was substantially complied
administrative remedies and/or primary jurisdiction. with pro hac vice.

As previously discussed, in the case at bar, only the allegation with respect to the lack of an 3. The appellate court erred when it ruled that the first and second amendments to the ECC
EIA relative to the first and second amendments to the subject ECC may be reasonably were invalid for failure to comply with a new EIA and for violating DAO 2003-30 and the
connected to such an environmental damage. Further, given the extreme urgency of resolving Revised Manual. It failed to properly consider the applicable provisions in DAO 2003-30 and
the issue due to the looming power crisis, this case may be considered as falling under an the Revised Manual for amendment to ECCs. Our own examination of the provisions on
exception to the doctrine of exhaustion of administrative remedies. Thus, the aforesaid issue amendments to ECCs in DAO 2003-30 and the Revised Manual, as wellas the EPRMP and
may be conceivably resolved in a writ of kalikasan case. PDR themselves, shows that the DENR reasonably exercised its discretion in requiring an
EPRMP and a PDR for the first and second amendments, respectively. Through these
More importantly, we have expressly ruled that this case is an exceptional case due to the documents, which the DENR reviewed, a new EIA was conducted relative to the proposed
looming power crisis, so that the rules of procedure may be suspended in order to address project modifications. Hence, absent sufficient showing of grave abuse of discretion or patent
issues which, ordinarily, the Court would not consider proper in a writ of kalikasan case. illegality, relative to both the procedure and substance of the amendment process, we uphold
Hence, all issues, including those not proper in a writ of kalikasan case, were resolved here in the validity of these amendments;
order to forestall another round of protracted litigation relative to the implementation of the 4. The appellate court erred when it invalidated the ECC for failure to comply with Section 59
subject project. of the IPRA Law.1âwphi1 The ECC is not the license or permit contemplated under Section
59 of the IPRA Law and its implementing rules. Hence, there is no necessity to secure the
Conclusion CNO under Section 59 before an ECC may be issued, and the issuance of the subject ECC
without first securing the aforesaid certification does not render it invalid;
We now summarize our findings: 5. The appellate court erred when it invalidated the LDA between SBMA and RP Energy for
failure to comply withSection 59 of the IPRA Law. While we find that a CNO should have
1. The appellate court correctly ruled that the Casiño Group failed to substantiate its claims been secured prior to the consummation of the LDA between SBMA and RP Energy,
thatthe construction and operation of the power plant will cause environmental damage of the considering that this is the first time we lay down the rule of action appropriate to the
magnitude contemplated under the writ of kalikasan. On the other hand, RP Energy presented application of Section 59, we refrain from invalidating the LDA for reasons of equity;
evidenceto establish that the subject project will not cause grave environmental damage,
 FINALS NATRES CASE PAJE vs CASINO 47
6. The appellate court erred when it ruled that compliance with Section 27, in relation to
Section 26, of the LGC (i.e., approval of the concerned sanggunian requirement) is necessary
prior to issuance of the subjectECC. The issuance of an ECC does not, by itself, result inthe
implementation of the project. Hence, there is no necessity to secure prior compliance with the
approval of the concerned sanggunian requirement, and the issuance of the subject ECC
without first complying with the aforesaid requirement does not render it invalid. The
appellate court also erred when it ruled that compliance with the aforesaid requirement is
necessary prior to the consummation of the LDA. By virtue of the clear provisions of RA
7227, the project is not subject to the aforesaid requirement and the SBMA’s decision to
approve the project prevails over the apparent objections of the concerned sanggunians. Thus,
the LDA entered into between SBMA and RP Energy suffers from no infirmity despite the
lack of approval of the concerned sanggunians; and

7. The appellate court correctly ruled thatthe issue as to the validity of the third amendment to
the ECC cannot be resolved in this case because it was not one of the issues set during the
preliminary conference, and would, thus, violate RP Energy’s right to due process.
WHEREFORE, the Court resolves to:

1. DENY the Petition in G.R. No. 207282; and

2. GRANT the Petitions in G.R.Nos. 207257, 207366 and 207276:

2.1. The January 30, 2013 Decision and May 22, 2013 Resolution of the Court of Appeals in
CA-G.R. SP No. 00015 are reversed and set aside;

2.2. The Petition for Writ of Kalikasan, docketed as CA-G.R. SP No. 00015, is denied for
insufficiency of evidence;

2.3. The validity of the December 22, 2008 Environmental Compliance Certificate, as well as
the July 8, 2010 first amendment and the May 26, 2011 second amendment thereto, issued by
the Department of Environment and Natural Resources in favor of Redondo Peninsula Energy,
Inc., are upheld; and

2.4. The validity of the June 8, 2010 Lease and Development Agreement between Subic Bay
Metropolitan Authority and Redondo Peninsula Energy, Inc. is upheld.