DEVELOPING ENVIRONMENT AND CLIMATE CHANGE JURISPRUDENCE

PHILIPPINE EXPERIENCE by Ronaldo R. Gutierrez

ENVIRONMENTAL JURISPRUDENCE

Ò  1993: Oposa vs. Factoran É Legal standing of minors and generations yet unborn É Fundamental and universal nature of environmental

rights Ò  2008: MMDA vs. Concerned Citizens of Manila

Bay É Role of courts in monitoring execution of environmental

laws É M.C. Mehta vs. Union of India and Vineet Narain vs.

Union of India cases

OTHER LEGAL DEVELOPMENTS

Ò 2008: Environmental Courts Ò 2010: Rules of Procedure for Environmental

Cases (RPEC) Ð 1987 Philippine Constitution – authorized the Supreme

Court to promulgate rules concerning the protection and enforcement of constitutional rights (e.g. amparo, habeas data)

RPEC OBJECTIVES

Ò  To protect and advance the constitutional right to a balanced and healthful ecology

Ò  To provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements

Ò  To introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws

Ò  To enable the courts to monitor and exact compliance with orders and judgments in environmental cases

RPEC INNOVATIONS

Ò TEPO/EPO Ò Legal Standing Ò Evidence Ò Special Remedies Ò Others

WRIT OF KALIKASAN

The writ is a remedy available to a natural or juridical person, entity authorized by law, PO, NGO, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

WRIT OF KALIKASAN

Reliefs Ò Permanent Cease & Desist Order Ò Rehabilitation or Restoration Ò Monitoring for strict compliance Ò Periodic reporting Ò Such other reliefs (except award of damages to

individual petitioners)

WRIT OF CONTINUING MANDAMUS

When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations x x x x

WRIT OF CONTINUING MANDAMUS

Reliefs Ò  Performance of an act or series of acts until judgment is fully

satisfied Ò  Such other reliefs as may be warranted resulting from the

wrongful or illegal acts of the respondent Ò  Submission of periodic reports detailing the progress and

execution Ò  Evaluation and monitoring of compliance by court or

commissioner Ò  Submission of comments or observations by petitioner re

execution

SOME DECIDED CASES

Ò USS Guardian

SOME DECIDED CASES

Ò USS Guardian Ò Redondo coal-fired power plant Ò Bt Talong (Brinjal/Eggplant)

DEVELOPING CLIMATE CHANGE JURISPRUDENCE

None! …so far.

ELEMENTS

1.  Formal a.  Legal Standing b.  Legal Remedy

2.  Substantive a.  Legal Basis (Rt. to a Healthy Environment) b.  Procedural Requirements (Rt. to Public

Participation & Rt. to Information)

ALTERNATIVES UNDER EXISTING LAWS

Ò  2014: Yolanda (Hainan) survivors to sue government officials for neglect – ANTI-GRAFT

Ò  2016: Petition against HR implications of climate impacts from oil companies – HR INVESTIGATION

Ò  Domestic Suit on Loss & Damages Ò  Consumer Protection on strict liability (design,

manufacture, label)

RECOMMENDATIONS

Ò Specialized environmental courts Ò Demand side (public interest environmental

lawyering) Ò Legal but not necessarily Judicial (e.g.

Administrative) – climate assessment, REDD+ framework, adaptation programmes

THANK YOU!