what is writ of kalikasan

7/29/2019 what is writ of kalikasan

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WE DO NOT INHERIT THE LAND FROM OUR ANCESTORS; WE BORROW IT FROM OURCHILDREN.

AM No. 09-6-8-SCRules of Procedure for Environmental Cases

PART IIISPECIAL CIVIL ACTIONS

RULE 7

WRIT OF KALIKASAN-Norma E. Agustin

The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. IIof the Philippine Constitution which provides that:

The State shall protect and advance the right of the people to a balanced and

healthful ecology in accord with the rhythm and harmony of nature.

Section 15 of the same Article provides that:

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

Parenthetically, we have the following laws to protects our environment:

(a)Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;(b)P.D. No. 705, Revised Forestry Code(c)P.D. No. 856, Sanitation Code;(d)P.D. No. 979, Marine Pollution Decree;(e)P.D. No. 1067, Water Code;(f) P.D. No. 1151, Philippine Environmental Policy of 1977;(g)P.D. No. 1433, Plant Quarantine Law of 1978;(h)P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other

Environmental Management Related Measures and for Other Purposes;(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or

Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along PublicRoads, in Plazas, Parks, School Premises or in any Other Public Ground;

(j) R.A. No. 4850, Laguna Lake Development Authority Act;(k)R.A. No. 6969, Toxic Substances and Hazardous Waste Act;(l) R.A. No. 7076, Peoples Small-Scale Mining Act;(m)R.A. No. 7586, National Integrated Protected Areas System Act including all laws,

decrees, orders, proclamations and issuances establishing protected areas;(n)R.A. No. 7611, Strategic Environmental Plan for Palawan Act;(o)R.A. No. 7942, Philippine Mining Act;(p)R.A. No. 8371, Indigenous Peoples Rights Act;(q)R.A. No. 8550, Philippine Fisheries Code;(r) R.A. No. 8749, Clean Air Act;(s) R.A. No. 9003, Ecological Solid Waste Management Act;(t) R.A. No. 9072, National Caves and Cave Resource Management Act;(u)R.A. No. 9147, Wildlife Conservation and Protection Act;100 A.M. No. 09-6-8-SC(v)

R.A. No. 9175, Chainsaw Act;(w)R.A. No. 9275, Clean Water Act;

(x)R.A. No. 9483, Oil Spill Compensation Act of 2007;(y)Provisions in C.A. No. 141, The Public Land Act;(z) R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988;(aa) R.A. No. 7160, Local Government Code of 1991;(bb) R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other

Environmental Laws (Amending the NIRC);


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(cc) R.A. No. 7308, Seed Industry Development Act of 1992;(dd) R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut

Preservation Act;(ee) R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997;(ff)R.A. No. 9522, The Philippine Archipelagic Baselines Law;(gg) R.A. No. 9593, Renewable Energy Act of 2008;(hh) R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the

conservation, development, preservation, protection and utilization of the environmentand natural resources.

In 2007, special environmental courts were designated for improved environmentaladjudication. However, in 2009, these Courts were swapmed with as many as 3,000 cases.

Thus, former Chief Justice Reynato Puno deemed the need for more specific rules thatcan sufficiently address the procedural concerns that are peculiar to environmental cases.

Thus were born the Rules of Procedure for environmental cases.

Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, Theuse of a consent decree is an innovative way to resolve environmental cases. It allows for acompromise agreement between two parties in environmental litigation over issues that wouldnormally be litigated in court, and other matters that may not necessarily be of issue in court.(3) environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus,(6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle.

Most of the provisions included in said rules are remedies that are directed to the actualdifficulties encountered by concerned government agencies, corporations, practitioners,peoples organizations, non-governmental organizations, and public-interest groups handlingenvironmental cases.

THE WRIT OF KALIKASAN

It is a remedy available to a natural or juridical person, entity authorized by law, peoplesorganizations, non-governmental organization, or any public interest group accredited by orregistered with any government agency, on behalf of persons whose constitutional right to abalanced and healthful ecology is violated, or threatened with violation by an unlawful act oromission of a public official or employee, or private individual or entity, involving environmentaldamage of such magnitude as to prejudice the life, health or property of inhabitants in two ormore cities or provinces.

THE WRIT OF KALIKASAN: NORMATIVE FOUNDATIONS

ENVIRONMENTAL JUSTICE is now a recognized human right at this time that theplanet is facing an ecological timebomb with threats of environmental disaster indifferent parts of the globe.

INTERGENERATIONAL RESPONSIBILITY: The present generation has theresponsibility to preserve the environment for generations yet to be born ( a doctrineenunciated in the Stockholm Declaration and by the Philippine Supreme Court in Oposav. Factoran).

EXTRAORDINARY REMEDY

The underlying emphasis in the Writ of Kalikasan is magnitude as it deals with damagethat transcends political and territorial boundaries.

Magnitude is thus measured when there is environmental damage that prejudices thelife, health or property of inhabitants in two or more cities or provinces.

As can be observed, the Wirt of Kalikasan does not include damage involving two ormore municipalities because under this Writ, emphasis is placed on the magnitude. Under theLocal Government Code of 1991, a municipality is composed of 25,000 inhabitants and has a


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territory of 50 square kilometers while a city is composed of 150,000 inhabitants and has aterritory of 100 square kilometers.

WHO MAY FILE

(1)a natural or juridical person;(2)entity authorized by law; or(3)peoples organization, non-governmental organization, or any public interest group

accredited by or registered with any government agency on behalf of persons whoseconstitutional right to a balanced and healthful ecology is violated involvingenvironmental damage of such magnitude as to prejudice the life, health or property ofinhabitants in two or more cities or provinces

To further encourage the protection of the environment, the Rules enable litigants enforcingenvironmental rights to file their cases as citizen suits.

CITIZEN SUIT

This provision liberalizes standing for all cases filed enforcing environmental laws andcollapses the traditional rule on personal and direct interest, on the principle that humans arestewards of nature. The terminology of the text reflects the doctrine first enunciated in Oposav. Factoran, insofar as it refers to minors and generations yet unborn.

While the Rules liberalize the requirements for standing, in the case of non-governmentorganizations (NGOs) and peoples organizations (POs), proof of their juridical personality(i.e.accreditation, recognition or registration) is required, given the relative ease by which anumber of groups can loosely organize and label themselves as NGOs or POs. This is requiredto prevent fly by night groups from abusing the writ.

Contents of Petition:

(1)Name/s and personal circumstances of petitioner/s, and of respondent/s who ifunknown and uncertain, may be described under assumed appellation;

(2)The environmental law, rule or regulation violated or threatened to be violated , theact or omission complained of, and the environmental damage.

(3)Evidence to be attached: affidavits of witnesses, documentary evidence, scientific orother expert studies, and object evidence;

(4)The certification of non-forum shopping(5)The reliefs prayed for which may include a prayer for the issuance of a Temporary

Protection Order

*The Petition must be verified.

The petition is required to allege the extent of the magnitude of the environmental damage.All relevant and material evidence must be attached to the petition to allow the court todetermine whether the immediate issuance of the writ is warranted. TEPO is a relief available,as in the Writ of Continuing Mandamus.

WHERE TO FILE

The petition shall be filed with the Supreme Court or with any of the stations of the Court ofAppeals.

Venue. The magnitude of the environmental damage is the reason for limiting where the writmay be filed, to the Supreme Court or Court of Appeals whose jurisdiction is national in scope.

Strictly speaking, the battle arena is in the Court of Appeals. After the Supreme Courtissues a Writ of Kalikasan, the case is referred to the Court of Appeals for hearing, reception ofevidence and rendition of judgement.


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NO DOCKET FEES

The petitioner shall be exempt from the payment of docket fees.The exemption from payment of docket fees is consistent with the character of the reliefs

available under the writ, which excludes damages for personal injuries. This exemption alsoencourages public participation in availing of the remedy.

Effect of Filing of Writ of Kalikasan on other judicial actions: The filing of apetition for the issuance of the writ of kalikasan shall not preclude the filing ofseparate civil, criminal or administrative actions.

Prohibited Pleadings: (a) Motion to dismiss; (b) Motion for extension of time to file return; (c) Motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; and (h) Motion to declare respondent in Default

Why prohibit certain pleadings?To expedite the judicial process.

A motion for intervention is not a prohibited pleading. Thus, any interested party may filesuch a motion which affirms the public interest nature of the Writ of Kalikasan, a remedy whicha large segment of the community may wish to avail of.

When is a Temporary Environmental Protection Order (or TEPO, which is equivalentto a TRO available?

In case of extreme urgency and the applicant will suffer grave injustice and irreparable injury,the court may issue ex parte a TEPO effective for only seventy-two (72) hours from date of thereceipt of the TEPO by the party or person enjoined. Within said period, the court where thecase is assigned shall conduct a summary hearing to determine whether the TEPO may beextended until the termination of the case.

The court should periodically monitor the existence of acts which are the subject matterof the TEPO, the TEPO can being lifted anytime as the circumstances may warrant.

Dissolution of the TEPO: The TEPO may be dissolved if it appears after hearing that its

issuance or continuance would cause irreparable damage to the party or person enjoinedwhile the applicant may be fully compensated for such damages as he may suffer and subjectto the posting of a sufficient bond by the party or person enjoined.

When to File Return: Within TEN days from receipt of notice

Form and Content of Return: Must be verified; General denial of allegations is deemed anadmission, thus denials must be specific.

Effect of Failure to File Return: Court will hear the case ex parte

Ultimate Reliefsto be prayed for/ granted: Permanent Cease and Desist Order Order for rehabilitation or Restoration of damage Order for respondent to monitor strict compliance with court orders and decisions Order for respondent to make periodic reports on strict compliance with court orders

and decisions. Such other reliefs (except award of damages to individual petitioners)


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NOTE: The Court will not grant an award for personal damages which may be claimed in aseparate civil action.

THE PROCEDURE AT A GLANCE

Filing of Initiatory Pleading Manner: Personal or by registered mailCourt of Jurisdiction: Court of Appeals OR Supreme Court

Issuance of the Writ Court orders issuance of writ within THREE days uponfiling of the action IF the petition is sufficient in form andsubstance.Clerk of Court issues writ under seal of court

Service of Writ Writ is served either personally, or by substituted service.Clerk of court who unduly delays issuance of writ shall bepunished for contempt of court.

Filing of Return Respondent files return of writ within NON-EXTENDIBLEperiod of TEN DAYS from receipt of writ.Effect of failure to file return: Court hears the case exparte so as not to delay the proceedings.

Hearing Court sets hearing UPON RECEIPT of returnMay include preliminary conference to simplify issuesinorder to expedite proceedingsHearing period including preliminary conference should notexceed SIXTY DAYS

Submission After hearing, the court issues an order submitting thecase for decision. It MAY require parties to submit amemorandum, if possible, in its electronic form, within anon-extendible period of thirty (30) days from the date thepetition is submitted for decision.

Judgment Within sixty (60) days from the time the petition issubmitted for decision, the court shall render judgmentgranting or denying the privilege of the writ of kalikasan.

Appeal Appeal may be raised from Court of Appeals to Supreme

Court within FIFTEEN DAYS from notice of adversejudgment or denial of motion for reconsideration underRule 45 of Rules of Court.Issues that may be raised: Issues of law and by way ofexception to Rule 45, issues of fact

Execution In case of a winning judgment, it will be executedThe execution will be governed by the ordinary rules.

*Return the verified return shall contain all defenses to show that respondent did not violateor threaten to violate or allow the violation of any environmental law, rule or regulation orcommit any act resulting to environmental damage of such magnitude provided under the rules.

*Hearing - The environmental damage subject of the writ may involve issues that are of acomplex character, and for this reason, the hearing is not summary. The abbreviated timeframe required, however, insures that the proceedings are expedited.


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Discovery Measures

A party may file a verified motion for the following reliefs:1. Ocular Inspection; order2. Production or inspection of documents or things; order

Ocular Inspection; order The motion must show that an ocular inspection order is necessaryto establish the magnitude of the violation or the threat as to prejudicethe life, health or property of inhabitants in two or more cities or provinces. It shall state indetail the place or places to be inspected. It shall be supported by affidavits of witnesseshaving personal knowledge of the violation or threatened violation of environmental law.

Production or inspection of documents or things; order The motion must show that aproduction order is necessary to establish the magnitude of the violation or the threat as toprejudice the life, health or property of inhabitants in two or more cities or provinces.

The discovery measures are available to all parties to the writ. Considering that these measures

are invasive, the court may prescribe conditions in any order granting suchmeasures to safeguard constitutional rights.

14 POSSIBLE DEFENSES1. No environmental damage2. No environmental damage caused by Respondent3. Environmental damage caused by another4. Not environmental case5. Not violate environmental law6. Not prejudice life, health or property of inhabitants7. Not affect 2 or more cities or provinces8. No evidence9. No causal link between act and damage10. There is plain, speedy and adequate remedy exhaustion of administrative remedies.11. Compliance with all laws and regulations12. Compliance with all ECC conditions13. Case amounts to SLAPP14. Constitutional issues against the Rules

The writ is a tool of last resort because it can be availed of when one project forexample hs been issued an environmental clearance certificate (ECC) or has slipped past theprocess of the environmental impact assessment (EIA).However, the issuance of the writ does not mean a project is halted. It just places a burden on

the respondent to prove that their operations will not or is not causing environmental harm.

OTHER FEATURES OF WRIT OF KALIKASAN

A homegrown judicial remedy available only in the Philippines Summary in nature; expedited disposition of cases Liberal rule on locus standi;organizations can stand in representation of communities or

of those who suffered actual damage. No docket fee required to be paid by petitioner to strike a balance between ecological

and economic development concerns. Allows submission of memorandum through email Allows discovery procedure in gathering evidence ( such as ocular inspection, production

or inspection of documents or things) Applies PRECAUTIONARY PRINCIPLE: When human activitiesmay lead to threats

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


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evidence in writ of kalikasan cases where the burden is on the respondents to provethat their activity that may cause damage to the environment is not in fact damaging.

WRIT OF KALIKASAN: First Philippine Industrial Corporation (FPIC) Case

In July 2010, a persistent fuel leak began to well up in the basement of the West TowerCondominium in Makati City, forcing the condominium residents to temporarily vacate thearea. The leak was traced by experts to a 117 kilometer FPIC-operated pipeline whichdelivers petroleum products from Batangas to Manila. Claiming that pipeline leak causes a

potential environmental and security threat" to the condominium residents as well as topeople living in areas within two or more provinces and cities under which the pipelineruns, the residents filed a petition for a writ of kalikasan with the Supreme Court.

In their petition, the residents prayed that the FPIC permanently shut down and replacethe damaged pipeline.

The residents also prayed that the Supreme Court compel the pipelines operator to

rehabilitate and restore the environment" affected by the oil leak, and to open a specialtrust fund to answer for similar incidents in the future. They also prayed for a TEPO

temporarily stopping the Lopez-owned First Philippine Industrial Corp. (FPIC) from operating

its damaged pipeline.

The Supreme Court granted the writ the first time it did so since the promulgation ofthe Rule on Kalikasan- and directed FPIC to cease and desist from operating the pipelineuntil further orders and to check the structural integrity of the whole span of the 117-kmpipeline and give a report to the Court within 60 days.

FPIC has been rehabilitating its pipelines. The TEPO has been lifted. The SC has since

remanded the case to the Court of Appeals to determine if the petitioners are entitled to theprivilege of the writ.

Several instances wherein the SC issued Writ of Kalikasan.

Protected Area Mgt. Board to refrain from issuing clearances for fish cage operations in TaalLake;

government to answer a petition seeking to stop mining operations in the ZamboangaPeninsula;

Placer Dome and Barric Gold to clean up the toxic waste that spilled into the Boac River inMarinduque in 1996;

Baguio City government to cease and desist from using the Irisan dump facility either as aholding or staging area or as controlled area for all kinds of solid wastes;

Rehabilitating the Manila Bay by cleaning-up the river veins connected to the bay; andStopping FPIC from operating the 117-kilometer Batangas-to-Manila oil pipeline after it leaked

sometime in2010.

what is writ of kalikasan

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