Draft Rationale 04.10.2010_JCAB

I. INTRODUCTION: THE RIGHTS-BASED APPROACH TO ENVIRONMENTAL JUSTICE

Basic Approaches and Principles of Environmental Protection

While the gradual, yet ominous and potentially cataclysmic degradation of our environment is undeniable, the concept of environmental protection is in of itself a quagmire of grand proportions. Unlike more traditionally defined human rights (and other categories of rights as well such as civil rights), the question of whether environmental rights should be enforced or should not be enforced depends on where the assessor’s paradigm is plotted along a spectrum of competing interests. In the example of genocide, for instance, assuming the elements of this international crime have been established, there is no grey area with which one can question whether rights have been violated. Either it is genocide or it is not. The subject of genocide is sensitive and immediately strikes the nerve of human dignity because of the crime’s gruesome and inhumane nature. The protection of the environment, on the other hand, does not boast of such clear polar ends of interpretation. One can argue that less environmental protection maximizes the exploitation of resources for the benefit of the people’s consumption.1 This traditional dichotomy of economic interests versus environmental interests has suffused the discourse on environmental protection, as well as other areas such as economic and social development.

Given these commonly competing interests, several schools of thought have come about in seeking to address this perpetual dilemma. The seemingly boundless and multifaceted nature of environmental rights has spawned different basic approaches to its enforcement.2 Taken together, an amorphous pool of theoretical and practical legal principles materialized, giving way for an evolving environmental legal movement recognized all over the world, but to varying degrees producing often contradictory stances.3

The first is the anthropocentric approach to environmental protection. Under this approach, the goal of preserving the environment is to satisfy 1 See Hohmann, Harald, Precautionary Legal Duties and Principles of Modern International Environmental Law, pp. 1-2, Graham & Troutman/Martinus Nijhoff (1994).2 Id., at 2-3.3 See id., e.g. the anthropocentric approach calls for the preservation of nature to the extent that it may continue to satisfy the needs of man, whereas the sustainability principle claims that nature must also be maintained for its own sake and sustainable indefinitely spanning future generations.

health, aesthetic and economic interests of man.4 Man’s primary interest is that there are enough resources to exploit for consumption. Thus, at the breaking point of realizing the limit of resources, man is forced to consider preserving nature to the extent that it could provide for enough resources to last his lifetime.5 The glaring repercussion of this approach is that the subsistence of our ecosystems would be endangered.6 In all likelihood, the rate of exploitation far exceeds the rate of protection, where indifference to protection is perpetuated by the presence of sufficient resources for the time being. Accordingly, along the abovementioned spectrum of competing interests, the anthropocentric approach would lie on the end favoring economic interests.

Whether based on scientific evidence or mere observation, environmental destruction has slowly come to the attention of us all. Prerogatives to slow down the effects of an anthropocentric approach resulted in more ecologically-favorable approaches to environmental protection.7 The discipline of ecology is based on the interconnectivity and interdependence between organisms and the elements of the environment.8

An appreciation of this link between all elements of living things and nature would naturally instill a sense of urgency to protect our ecosystems. Without such protection, the endangerment of the ecosystems will correlate to the endangerment of humankind. Conversely, its protection would benefit man and his ability to survive and sustain in the world. An extreme manifestation of ecological protection is an ecocentric approach, the obvious antithesis of anthropocentricity where economic and environmental interests are at odds. Under the ecocentric approach, plants and animals themselves have legal rights.9 The obvious trouble with strictly applying this approach is that man may be impeded from exploiting natural resources for his survival. As with the anthropocentric approach, heavily favoring one interest over another (in this case environment over economy) could produce absurd results for social and economic development.10

4 Id., at 2-3 citing Cf. Bosselman, KJ 1985, p.352 et seq., and 1986 p. 8 et seq.; G. Frank, DVBI, 1989, p. 696 et seq. 5 See id.6 See id. 7 See id., at 2. 8 Id.9 Id., at 3 citing Cf. Stone, 45 Southern California L. Review 450 (1972) et seq.10 See id., at 2-3.

Thus, the more nuanced principle of sustainability came into fruition. The sustainability principle seeks to strike a delicate balance between the competing interests of economic exploitation (and thus economic development) and environmental protection. It espouses a system in which man can exploit resources for his benefit without destroying the environment in such a way that future generations cannot meet their own needs.11 In other words, sustainability seeks to protect posterity, or inter-generational equity.12

In terms of renewable resources, sustainability requires that they be exploited at a rate that allows for its continuing usage and availability in the future without decline.13 For non-renewable resources, sustainability requires that they be used as efficiently as possible.14 In sum, the aim of this principle is to demand optimal management of environmental resources.15

Taking the main elements of other approaches and disciplines such as ecology, sustainability appears to be the ideal principle upon which legal regimes protecting the environment should be based.

Implementing sustainability, however, is a challenge entirely different from that of having its tenets accepted internationally. There is a lingering question on how to develop environmental laws, both internationally and domestically, which properly reflect the balanced approach to environmental protection. Several factors make this development extremely difficult. For instance, certain jurisdictions have different economic needs than others. The mere difference in degree of economic interests alone can hamper political will to protect the environment. Moreover, such nuances also challenge the development of international environmental norms where consensus among jurisdictions with different economic and environmental needs would be difficult to conceive. Yet, despite these potential issues, the push for the enactment and enforcement of environmental laws comes with the hope that they become authoritative through international norms or influential through best domestic practices.

Environmental Law and the Emergence of the Rights-based Approach

The approaches to and principles of environmental protection must necessarily be subsumed in environmental law. Thus, environmental law is

11 Id., at 2.12 Id., at 1.13 Id., at 2.14 Id.15 Id.

associated with two main approaches: the traditional approach, and the modern resource-economical and ecological approach.16

There are three main purposes for environmental law under the traditional approach:

1. protecting the safety and health of human beings from harm and the risk of potential or impending harm;

2. assuring the general welfare of man (protection against nuisance, fulfillment of recreational and esthetic needs, etc.); and

3. protecting economic interests (especially in the fields of agriculture, forestry, fish farming, energy production and drinking water supply) from detrimental effects of pollution.17

These purposes reflect important qualities: protecting man from environmental harm and protecting the environment in such a way that man’s interests (e.g. economic, esthetic) are not impeded. The qualities reveal shades of the anthropocentric approach.

The more progressive paradigm is the modern resource-economical and ecological approach. Under this approach, the economic and aesthetic interests of man are protected, but also tempered with the protection of the environment through sustainable use and optimal management of resources.18 Quite obviously, this approach reflects the sustainability principle. In this regard, the survival of future generations is vital, demanding that environmental protection be done in such a manner that guarantees sustainable use of natural resources.19

Taking sustainability a step further, environmental law received a boost from components of the international community. The newer approach took into account the now recognized intersection between

16 Id., at 3-4.17 Id., at 3.18 Id., at 4.19 Id.

environmental rights and human rights, which aptly reflects the interdependent relationship of man and nature.

In 1994, Fatma Zohra Ksentini, Special Rapporteur on Human Rights and Environment finalized a seminal report entitled “Human Rights and the Environment” (“Ksentini Report”).20 The Ksentini Report is known for imploring the international community to recognize a human rights approach to solving environmental issues. It generally posits that subsumed in the nexus between human rights and the environment are several other disciplinal elements such as the global economy, democracy and cultural development among others.21 All of these elements together constitute a more comprehensive human dimension to environmental justice. In this regard, the Ksentini Report outlined the following principles:

Part I

1. Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.

2. All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.

3. All persons shall be free from any form of discrimination in regard to actions and decisions that affect the environment.

4. All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.22

Similar to the traditional approach of environmental law, these principles revolve around “persons”. The main difference between both

20 Fatma Zohra Ksentini, Special Rapporteur’s Final Report, U.N. Doc. E/CN.4/Sub.2/1994/9, July 6, 1994.21 See id.22 Ksentini Report, at 74.

approaches appears to be that the Ksentini report, now integrates the element of sustainability with the person-oriented right to a healthy environment.23

Even more compelling is the human rights angle to the rights-based approach. Under this approach, the right of persons to environmental protection would possess the same degree of authority of fundamental rights that are backed by international norms.24 The aim is that this new wave of environmental protection would be treated with the same respect as international norms so as to allow domestic jurisdictions to take necessary action in protecting the environment. Human rights generally enjoy ascendancy in law that, by its fundamental nature, cannot be restrained or altered by states.25

Adopting the Right-based Approach

One crucial implication to the rights-based approach is the question of who can enforce environmental rights. The language of the Ksentini report that focuses on the right of persons lends to the suggestion that it is such person who can bring enforce his or her right to the protection of the environment in the same way persons can seek judicial relief for the violation of their civil or socioeconomic rights.26 This particular aspect of the rights-based approach is one of the more important considerations for formulating solutions to environmental protection in the Philippines. Accordingly, the Supreme Court adopted the rights-based approach as the most appropriate paradigm for facilitating the administration of environmental justice.

The 1987 Constitution bestows upon the Supreme Court of the Philippines a peculiar form of authority. Specifically, the Supreme Court can enact rules to enforce constitutional rights, the power of which may be typically lodged in the legislative bodies or branches of other jurisdictions. 27

The Court also determines the procedures and rules of the judiciary which are necessary to facilitate the administration of justice, and address the obstacles that come with certain realms of legal issues.28 The complexity of

23 See id., and Hohmann at 2-4.24 See i.e., The Universal Declaration of Human Rights, 1948.25 See id. 26 See Ksentini Report, at 74.27 See Article VIII, Sec. 5, par. (5), “The Supreme Court shall have the following powers…Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts…”28 See id.

environmental laws and their enforcement require the Court to rethink its procedures in order to facilitate the administration of environmental justice. Of the many guiding principles in formulating such solutions, the participation of the people in enforcing environmental rights is key. It is with this general framework, that the Court has adopted the rights-based approach and effectuated the Rules of Procedure for Environmental Cases.

II. SOURCES OF ENVIRONMENTAL RIGHTS

A. Introduction – The Nexus Between Human Rights and Environmental Rights

A growing number of international instruments as well as national constitutions, domestic legislations, and academic literature have recognized the inextricable link between human rights and environmental rights.29 It is significant to note that a fair amount of literature on the origins of environmental rights documents in parallel that the “right to an adequate environment” or what is collectively known as “environmental rights” grew out of a human rights framework.30

The human rights movement came to fore shortly after the international community was recovering from the aftermath of World War II.31 In many ways, human rights emerged as new kind of periphery for political and economic development in a period of very great uncertainty. The atrocities committed during the 2nd World War riveted public attention to the urgency for the community of nations to adopt an internationally-recognized policy that would foster and protect basic human dignity, peace,

29 The United Nations Environmental Program (UNEP) has a database of environmental law instruments that date back to 1933, this database is available at http://www.unep.org/Law/Law_instruments/index.asp.

30 Sumudu Atapattu, The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law, 16 Tul. Envtl. L.J. at 66 (2002) [hereinafter Ataputtu], available at http://ideas.repec.org/a/spr/ieaple/v8y2008i2p179-181.html, last accessed 24 January 2010. Another way of framing this theory is acknowledging the reality that signs, values, attitudes towards human rights helped endorsed the environmental rights movement.

31 Franz Perrez, Key Questions Concerning the Human rights and Environment Debate – An Introduction, in Human Rights and the Environment: Proceedings of a Geneva Environment Network Roundtable 4, (2004) [hereinafter Geneva Roundtable].

http://ideas.repec.org/a/spr/ieaple/v8y2008i2p179-181.html

http://www.unep.org/Law/Law_instruments/index.asp

respect, and tolerance. In 1948, this common aspiration of according the highest respect for human dignity was soon crystallized by the United Nations General Assembly in its adoption of the “Universal Declaration of Human Rights”.32 For the first time in history, the 1948 Universal Declaration of Human Rights sets out fundamental human rights to be universally protected.

This milestone document includes specific human rights such as the right to life, liberty, security of person, right against arbitrary arrest and detention, right to property, freedom of expression, and peaceful assembly.33

The political and legal significance of this instrument is of such import that despite its status as a mere non-binding declaration it has influenced national constitutions, serves as the foundation for a growing number of international and regional covenants and treaties, including national legislation, and is recognized by many international law scholars as part of customary international law. In fact, the declaration also served as the foundation for two binding United Nations’ documents – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESC).

Paramount to environmental rights advocates is Article 25 of the Declaration which sets out in its first paragraph, “the right to a standard of living adequate for the health and well-being” of an individual and his family. Although neither the Declaration nor any of is articles made specific reference to environmental protection, the adoption of the Declaration makes a strong case for the position that a human rights lens is a helpful way of viewing environmental issues. This Declaration captured the critical thesis that the enjoyment of all human rights – not only the rights to life and health – but also other social, economic, cultural, as well as civil and political rights, depended greatly on a sound environment.34

32 The full text of the document is available at http://www.un.org/en/documents/udhr/. 33 Id. See Articles 34 Vid Vukasovic, Human Rights and Environmental Issues in Human Rights and Scientific and Technological Development (1990) available at http://www.unu.edu/unupress/unupbooks/uu06he/uu06he0i.htm, last accessed 24 January 2010. A good number of human rights instruments guarantee a human right to a healthy and safe environment, some of these are:

http://www.unu.edu/unupress/unupbooks/uu06he/uu06he0i.htm

http://www.un.org/en/documents/udhr/

It must be noted however, that at that point in environmental legal history, the right to a safe and adequate environment was recognized alongside other substantive human rights such as the right to life, the right to health, the right to adequate housing, the right to water, the right to food, the right to culture, the right to participate in public life, and the right to freedom of speech.35 An independent right to a healthy environment had yet to emerge and a deliberate plan by environmental rights advocates to sketch out a massive grassroots political campaign for environmental rights was in the offing. The brief inattention given to environment issues after the 2nd World War (with the pre-occupation of most world leaders and policymakers on human rights) would soon be short-lived as environmental rights advocates pressed on with the environment agenda more deliberately in the 1960s with the publication of Rachel Carson’s seminal work, Silent Spring,36 on the ecologically-unsound pattern of usage by man of pesticides. Carson’s work not only created more awareness regarding the debilitating effects of environmentally hazardous practices, it also gave more legitimacy to the troubled crusade of the environmental rights movement.

The first signs of an impending environmental crisis had already been felt by the time of the extremely tumultuous decade of the 70s.37 As a response to this clarion call for more precautionary measures in dealing with the environment, the United Nations convened the first major international

a. Universal Declaration of Human Rights: Articles 22, 25, and 27.b. ICESC: Articles 1, 6, 7, 11, 12, 13, and 15.c. Convention on the Elimination of All Forms of Discrimination Against Women : Articles 11

and 14.d. Convention on the Elimination of All Forms of Racial Discrimination : Articles 2 and 5.e. Convention on the Rights of the Child : Articles 24 and 27.f. ILO Indigenous and Tribal Peoples Convention (No. 169) : Article 7.

35 See generally The National Human Rights Consultation – Engaging in the Debate (2009), available at http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/a-human-rights-act-for-all-australians/ [last accessed on 5 February 2010].

36 Carson, R., Fawcett Publications, Inc. (1972). No less than U.S. Supreme Court Associate Justice William O. Douglas commended Carson’s work as “the most important chronicle of this century for the human race.”37 The Vietnam War exacted a huge toll on the economies of the world (as the US suspended the convertibility of the dollar to gold in 1971), two massive oil shocks caused LDC trade deficits to balloon, cracks in the welfare system first began to show in the West, and mass marketing in cities, along with the break-up of the traditional family structure, produced widespread alienation. Protests were rife – against the North/South divide, against the indifference and cruelty of the ‘Establishment’, against the conservatism of previous decades.

http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/a-human-rights-act-for-all-australians/

http://www.hrlrc.org.au/content/topics/national-human-rights-consultation/a-human-rights-act-for-all-australians/

http://www.unhchr.ch/html/menu3/b/62.htm

http://www.unhchr.ch/html/menu3/b/k2crc.htm

http://www.unhchr.ch/html/menu3/b/d_icerd.htm

http://www.unhchr.ch/html/menu3/b/e1cedaw.htm

environmental conference in Stockholm, Sweden38 which gave rise to the Stockholm Declaration of 1972, known world-over as the first international document which recognized the right to a healthy environment. Principle 1 of the Stockholm Declaration linked environmental protection to human rights, stating:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

Two decades after the adoption of the Stockholm Declaration, a second major international environmental conference was held in Rio de Janeiro, Brazil,39 which focused on strategies to reverse the effects of environmental degradation alongside efforts to promote international and national sustainable development. A key result area of the conference was the adoption of the Rio Declaration of 1992 which identifies 27 principles concerning a number of issues related to the environment – environmental protection, eradication of poverty, precautionary principle, polluter-pays principle, right to development, right to information, and right to public participation in environmental decision-making processes. Principle 1 of the Rio Declaration states that “human beings are “at the centre of concerns for sustainable development.” Though the statement falls short of recognizing a healthy environment as a basic human right, it certainly points to that direction.

B. General Sources of Environmental Rights

1. Non-binding International Sources

International documents of a non-binding nature play an important role in all fields of international relations, and the human rights problematique is not an exception. In many cases they can regulate international relations in a specific field de facto, although they are not formally binding. Besides, they often lead to a higher level of regulation, i.e. international treaties, institutional arrangements, etc. The International Declaration on Human Rights was followed, for instance, by the Covenants, 38 The United Nations Conference on the Human Environment, 5-16 June 1972.39 The United Nations Conference on Environment and Development (UNCEP), 3-14 June 1992.

and similar developments occurred in other fields. From that point of view the proposed Declaration on Human Rights and Scientific and Technological Developments40 could be an important step towards better protection and promotion of human rights. It seems to us that such a declaration should contain, more or less, what has already been proposed by the group of experts convened by the United Nations in Geneva in September 1975, but that an additional effort should be made to link it more closely to development and the environment.

Naturally, one must always have in mind the other side of the coin More so-called soft law does not automatically mean more regulation and further progress in the field. In some cases, it leads to a proliferation of documents with very little or no importance at all, and it could even hinder the process of legal regulation. In other cases, however, including the fields of science, technology, the environment, and some other cognate domains, non-binding norms can be, if functionally well designed, very important and almost universally accepted and applied in such a way as to influence human rights beneficially. Good examples of such norms are formally non-binding ecological standards41 which are accepted by all or most interested states and other subjects of international law because it is in their interest to do so. The sanction for those who do not apply the standard becomes "functional." That means that the mere fact of not applying them can cause impairment of the environment, loss of profit, health problems, or even loss of life, lessening of political prestige, etc. If adequately set, they could represent an optimal mode of behaviour. In that way, although formally non-binding, they contribute to the protection of the environment, having a directly or indirectly positive impact on the protection and promotion of human rights.

There are a number of other international instruments that specifically refer to environmental human rights but are not legally binding on Philippines because they are draft texts, or they are not intended to be legally binding on parties, or they are conventions that Philippines not is a party to. Some of these instruments are environmental instruments that note human rights linkages and some are human rights instruments that note the importance of environmental rights. Although they are not binding on Philippines they are evidence of a strong global recognition of the

40 Citation to follow41 Citation to follow

importance of environmental rights and they indicate the path that Philippines can follow.

As noted above, the Stockholm Declaration was the first international instrument that specifically recognised the indivisible link between the environment and human rights. It states at Principle 1:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”

Similarly the 1992 Declaration on Environment and Development9, or ‘Rio Declaration,’ recognises the right of humans to a healthy and productive life in harmony with nature.

The most comprehensive of all the international texts on environmental rights is the 1994 Draft Principles on Human Rights and the Environment, which was derived from the Ksentini Report mentioned above.42 It contains a number of articles which outline the importance of environmental rights in the human rights context. The document was drafted by a group of international experts on human rights and environment protection on behalf of the UN Special Rapporteur for Human Rights and the Environment. It was never formalized as an international instrument and is not binding. Some of the key articles in the Draft Principles state:

• “Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.” (Article 1)

• “All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social

42 Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994) <http://www1.umn.edu/humanrts/instree/1994-dec.htm> on 19 May 2009

rights, are universal, interdependent and indivisible.” (Article 2)

• “All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.” (Article 4)

The Draft Principles highlight the indivisibility of human rights and environmental rights. A clean healthy environment is integral to the enjoyment of many other human rights such as the right to life, the right to health and food, the right to adequate housing etc. The Draft Principles are often quoted by human rights experts and international human rights bodies as a model text of environmental rights protection.

As can be seen from the above statements there is considerable support at the international level of the importance and indivisibility of environmental rights within human rights protections. It is not a new concept nor a radical concept. This recognition continues to grow through many international bodies and provides a strong foundation for Philippines to include environmental rights within human rights protections.

2. Environmental Rights within Domestic Human Rights Instruments

The protection of environmental rights in a human rights context at a domestic level is not a new concept. Many countries around the world provide some protection of environmental rights within their human rights charters.

Earthjustice summarised the constitutional recognition of environmental rights in a submission to the UN Commission on Human Rights in March 2005:43

“Numerous constitutions of the nations of the world guarantee a right to a clean and healthy environment or a related right. Of

43 Earthjustice, Environmental Rights Report on Human Rights and the Environment (2005) 37 <http://www.earthjustice.org/our_work/issues/international/human_rights/> at 19 May 2009.

the approximately 193 countries of the world, there are now 117 whose national constitutions mention the protection of the environment or natural resources. One hundred and nine of them recognise the right to a clean and healthy environment and/or the state’s obligation to prevent environmental harm. Of these, 56 constitutions explicitly recognise the right to a clean and healthy environment, and 97 constitutions make it the duty of the national government to prevent harm to the environment. Fifty-six constitutions recognize a responsibility of citizens or residents to protect the environment, while 14 prohibit the use of property in a manner that harms the environment or encourage land use planning to prevent such harm. Twenty constitutions explicitly make those who harm the environment liable for compensation and/or remediation of the harm, or establish a right to compensation for those suffering environmental injury. Sixteen constitutions provide an explicit right to information concerning the health of the environment or activities that may affect the environment.”

For example South Africa has specifically protected environmental rights in its Constitution:44

“Everyone has the right (a) to an environment that is not harmful to their health or well being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable and other legislative measures that (i) prevent pollution and degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

In 2005, France amended its constitution to include environmental provisions, known as the Environment Charter. The Charter contains 10 articles covering rights and responsibilities of its citizens in relation to the

44 Commonwealth Constitution, Chapter 2 section 24.

Environment. As it is incorporated into the Constitution it is legally binding and gives environmental rights and responsibilities the same status as other rights such as the right to life and universal suffrage. Article 1 of the Charter states: 45

“Everyone has the right to live in a balanced environment which shows due respect for health.”

Even small developing countries such as East Timor have provided protection of environmental rights in their constitutions. Section 61 of the East Timor Constitution states:46

“1. Everyone has the right to a humane, healthy, and ecologically balanced environment and the duty to protect it and improve it for the benefit of the future generations.

2. The State shall recognise the need to preserve and rationalise natural resources.

3. The State should promote actions aimed at protecting the environment and safeguarding the sustainable development of the economy.’’

C. The Right to a Balanced and Healthful Ecology in the Philippines - A Fundamental and Enforceable Right

1. The 1987 Constitution and Jurisprudence on Environmental Rights

A leading commentator on environmental law posits that there is diversity of approaches to structuring environmental rights in domestic constitutions: (1) as a policy statement, (2) as a procedural right or duty or (3) as a substantive right.47

45 Constitution of 4 October 1958, accessed at http://www.assemblee-nationale.fr/english/8ab.asp.46 Constitution of the Democratic Republic of Timor-Leste August 2001 accessed at http://www.timor-leste.gov.tl/constitution/constitution.htm

47 James R. May and Erin Daly, Vindicating Fundamental Environmental Rights Worldwide, 11 Oregon Review of International Law 373-(2009), available at http://ssrn.com/abstract=1479849 [last accessed on

http://ssrn.com/abstract=1479849

The 1987 Philippine Constitution contains a basic design for environmental rights protection and policy. The environmental provisions of the 1987 Constitution are located within a larger legal framework of constitutionally-guaranteed rights. This legal framework primarily establishes first principles48 by which government ought to exercise its powers in relation to environmental rights and provides for institutional arrangements and structures49 for authoritative governance.

The developmental construct of environmental rights under the 1987 Constitution is framed in such a way that these rights are shaped as state policies and do not form part of the bill of rights.50 Article II, Section 1651 of the 1987 Constitution is the flagship provision for environmental rights and is complemented by Article II, Section 1552 which provides the state policy on the right to health. This uproot from Article III of the Bill of Rights however, does not in anyway make it less of a human right compared to other freedoms protected by the 1987 Constitution because it also re-emerges as part of, and is interdependent of other fundamental rights as carved out (directly and indirectly) in other provisions of the 1987 Charter – the state policies on peace and order and general welfare,53 on social justice,54 on personal dignity and human rights;55 the article on social justice and human rights56 are treasured concepts in Philippine constitutionalism since the enactment of the 1935 Constitution. Furthermore, fleshed out in

25 January 2010].

48 Article II. Declaration of Principles and State Policies.49 Article VI. Legislative Department defines the scope and limitations on the exercise of police power; Article VII. Executive Department lays; Article VIII. Judicial Department.50 See James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 Pace Environmental Law Review 173 (2005-2006), Appendix B. Professor May created two lists of countries whose constitutions contained some reference to environmental protection – Appendix A listed down countries whose constitutions treated environmental rights as fundamental rights; on the other hand, Appendix B contained a list of countries whose constitutions referred to environmental rights as policy statements with 51 § 16. The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.52 § 15. The state shall protect and promote the right to health of the people and instill health consciousness among them.53 Article II, Section 5.54 Article II, Section 10.55 Article II, Section 11. The state values the dignity of every human person and guarantees full respect for human rights.56 Article XIII. Social Justice and Human Rights.

greater detail, the right to life under Article III, Section 157 does not only pertain to the protection of the right to be alive, but also means the right to a good life.58 The exchange between Commissioners Bennagen and Nolledo during the deliberations of the 1986 Constitutional Convention also supports the general idea that environmental rights are included in the complete concept of human rights.59

As much as the right to a balanced and healthful ecology is ordained in our constitution, there is also the question of enforceability. Many legal scholars who correlate fundamental environmental rights with enforceability either through administrative agencies or courts of law have managed to demonstrate that constitutionalizing commitments without the muscle of enforcement do not translate to real improvements in environmental conditions.60 Viewed as a whole, “enforcement” is seen as a barometer of how confident people are about environmental justice. Even as nations around the world have increasingly incorporated the principle of environmental protection in their fundamental laws, many of their courts have not found the occasion to interpret these textually-demonstrable constitutional provisions.

In 1994, the Supreme Court of the Philippines found the occasion to clarify and recast the notion of fundamental right to a healthy environment when minors, represented by their parents, filed a complaint to compel the Secretary of Environment and Natural Resources (DENR) to cancel all existing Timber License Agreements (TLA) and prevent the Secretary from issuing or renewing licenses. The landmark case of Oposa v Factoran, Jr. 61

offered an angle of vision for viewing environmental rights as constitutionally-guaranteed and fundamental human rights which are enforceable in a court of law.62 Through then Mr. Chief Justice Hilario Davide, the Court pronounced that the right to a balanced and healthful ecology was not just an empty incantation found in the constitution:

57 Article III, Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.58 Bernas, J.,S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).59 IV RECORD 688. In response to the question of Commissioner Bennagen if the state should make a conscious effort to enhance social, economic, and political conditions in relation to human rights, Commissioner Nolledo replied, “….when we talk of human rights, we talk of the whole gamut of human rights.”60 Constitutionalising, vindicating environmental rights61 224 SCRA 792 (1993).62 Id.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation, aptly and fittingly stressed by the petitioners. The advancement of which may even be said to predate all governments and constitutions.

The Court went further and even maintained that environmental rights “are enforceable notwithstanding whether they are constitutionally expressed because of their inception before humankind”:63

As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come - generations which stand to inherit nothing but parched earth incapable of sustaining life.

Oposa is one of the best known jurisprudential triumphs in the history of the Philippine High Court and not long after this case was decided, the High Court found itself continually securing for current and future generations the wealth of the environment, among others — Laguna Lake Development Authority (LLDA) v. C.A., et. al.,64 Henares, et. al. v. Land Transportation

63 Id. at 187. See also May and Daly supra note __ at 398.64 G.R. No. 110120, March 16, 1994. Balancing between the responsibility of the city government to take care of its garbage and the right of the people living near the dumpsite to a pollution-free environment, the Supreme Court ruled that the right to health is a constitutionally enshrined right over which no impairment can be made. The Supreme Court further said that the Philippines is a party to international instruments which recognizes the right to health as a fundamental right.

and Franchising Regulatory Board (LTFRB),65 and Social Justice Society, et. al. v. Atienza, Jr.66

The key insights pronounced by the High Court in Oposa provided powerful arguments for recognizing that not only were there fundamental environmental rights in the Philippine Constitution, but more importantly, ethical obligations were due to the entire community of life. Oposa was a cause cèlébre for the entire environmental rights community because it declared that a correlative duty to protect the environment could be exacted on each and every individual:67

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

"MR.VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution ? air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty

65 G.R. No. 158290, October 23, 2006. This petition focuses on one fundamental legal right of petitioners, their right to clean air. While the Supreme Court recognized the right of the petitioner, it however, ruled that the lack of legislation on the matter served as a restriction on the prayer to grant mandamus. 66 GR No. 156052, March 7, 2007. The petitioners filed with the High Court an original action for mandamus praying to compel Manila Mayor Atienza to enforce Ordinance No. 8027 which reclassifies certain portions of Pandacan and Sta. Ana from industrial to commercial and directs businesses not falling under the following classifications to “cease and desist from their operations” or relocate to another area. Among the businesses affected were the oil terminals of Caltex, Petron, and Shell. The Supreme Court granted the petition and ordered the immediate removal of the terminals of the said oil companies. The Court held that “there is nothing that legally hinders [Mayor Atienza] from enforcing Ordinance No. 8027 67

of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance." 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversibly disrupted.

Perhaps the second most eponymous decision of the Supreme Court of the Philippines after Oposa, that inspired countless of people working in the field of environmental law to enforce the right to a balanced and healthful ecology is the case of Concerned Residents of Manila Bay v. MetropolitanWaterworks and Sewerage System (MWSS), Local Water Utilities Administration (LWUA), The Department of Environment and NaturalResources (DENR), et al.68 The case upheld a request for a multi-faceted injunctive relief to prevent pollution discharges from choking Manila Bay and exacting compliance on various government agencies to clean and protect it for future generations.69 The Court wrote:70

Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.

Mr. Justice Presbitero J. Velasco, Jr., the ponente of the decision, explains that the Manila Bay case was the first in a series of decisions that affirms the constitutional environmental rights of citizens to push government agencies that skirt their obligation to provide for institutional environmental protection arrangements.71 Opportunity for reform frequently

68 G.R. Nos. 171947-48, December 18, 2008.

69 Id. at ____. See also May and Daly, supra note ____ at 399.70 Id.71 See generally, Presbitero J. Velasco, Jr., Manila Bay: A Daunting Challenge in Environmental Rehabilitation and Protection. Delivered on the occasion of the 3rd Annual Symposium on The Confluence of Human Rights and the Environment, 20 February 2009, University of Oregon.

beckons in the wake of a disaster and the decision produced a lot of pressure points for these agencies to clean up Manila Bay. Justice Velasco wrote:72

Those who have read the Court’s disposition in Manila Bay would at once notice the all-encompassing thrust of the ruling. Consider: It ordered any and all government agencies whose official functions and statutory duties have a connective bearing, however remote, to the cleaning and rehabilitation of the Manila Bay to spare no effort, at the implied risk of contempt of court, to perform these functions and duties, so as to achieve the desired purpose. It tried to address all possible causes, direct or contributory, of the pollution and decay of the bay. In essence, the Court’s directives revolved around, and may be broken into, three main areas: (1) prevention, control and protection; (2) prosecution and sanctions; and (3) rehabilitation.

2. Other Sources of Environmental Rights in the Philippines

Apart from the Constitution, domestic laws, domestic jurisprudence and writings of legal experts, the structure of the Philippine legal system considers international laws, international customs, general principles of international laws, international jurisprudence and writings of legal luminaries as sources of laws.73 In fact, under Article II, Section 2 of the 1987 Philippine Constitution, otherwise known as incorporation clause, it is explicitly stated that:

“The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

72 Id. at 5-7.73 There are scant Supreme Court decisions dealing on the issue of applying customary laws in the Philippines, however, none of them dealt with the right to life.

Apart from the Constitution, the State, in several domestic laws, is given the responsibility of protecting the individuals and the environment against violations by non-State actors including violations committed by transnational corporations.

The Department of Environment and Natural Resources is the lead national agency to look into environmental concerns of the country. In addition, special governmental agencies have been created to look into specific areas of concern like the Pollution Adjudication Board, the Laguna Lake Development Authority, the Land Transportation and Franchising Regulatory Board, the National Pollution Commission and the like. Further, the local government units have the power to issue ordinances for the protection of the environment and regulate the projects and activities of these non-State actors (transnational corporations).

First, the grant of license to these transnational corporations lies with the State. In some Supreme Court decisions, licenses and/or registrations were withheld in instances where it was found that the corporation has violated the environment and has failed in protecting and caring for the same. (Ysmael vs. Deputy Executive Secretary, G.R. No. 79538, October 18, 1990)

Second, the State has the power to issue restraining orders and/or injunctions for non-State actors found violating the environmental code. In addition, closure of these corporations and payment of damages may also be ordered. (Pollution Adjudication Board, vs. Court of Appeals, G.R. No. 93891, March 11, 1991; Technology Developers. Inc. vs. Court of Appeals, G.R. No. 94759, January 21, 1991; Republic vs. Marcopper, G.R. 137174, July 10, 2000; Laguna Lake Development Authority vs. Court of Appeals, G.R. Nos. 120865-71, December 7, 1995)

Third, heads or officers of these corporations may likewise be found criminally liable for negligence in their operation and violations of environmental laws. (Mustang Lumber, Inc. vs. Court of Appeals, G.R. No.

104988, June 18, 1996; Loney vs. People, G.R. No. 152644, February 10, 2006).74

Fourth, the local government units may issue ordinances protecting the environment which may have the effect of regulating non-State actors. In some Supreme Court decisions, the constitutionality of these ordinances in so far as they were made in furtherance of the right to a healthful ecology was sustained. (Taño vs. Socrates, G.R. No. 110249, August 21, 1997; Social Justice Society, Et Al. vs. Atienza, Jr., GR No. 156052, March 7, 2007)

Fifth, the legislature can enact laws to regulate projects and activities of these industries in order to protect the environment and promote the health. Further, the legislature can enact laws protecting the environment. (Province of Rizal vs. Executive Secretary, G.R. No. 129546, December 13, 2005). In fact the Philippines has enacted legislation imposing human rights obligations on non-State actors to protect the rights of life and health against environmental harms arising from various activities. Some of these laws include – Revised Forestry Code of the Philippines, the National Integrated Protected Areas System Act of 1992, the Ecological Solid Waste Management Act of 200, the Philippine Mining Act of 2005, Biofuels Act of 2006, etc…75

Lastly, efforts towards education of the people on the area of environment is being conducted by the state agencies as well as non-governmental organizations.

III. THEORIES SUPPORTING ENVIRONMENTAL RIGHTS

74 In the case of Mustang Lumber, the Supreme Court boldly stated that, “The Government must not tire in its vigilance to protect the environment by prosecuting without fear or favor any person who dares to violate our laws for the utilization and protection of our forests.”75 The role of Philippine jurisprudence has already been dealt with in the previous section, however, just to add, the judiciary is tasked to interpret laws and in doing so, takes into consideration the principles enunciated in the Constitution including the right to life and health. It can declare laws and ordinances as unconstitutional. Further, the judiciary has the power to punish violators of our laws and demand reparation for damages. (Macasiano vs. Diokno, G.R. No. 97764, August 10, 1992; Republic vs. Marcopper, G.R. 137174, July 10, 2000;)

[c/o James/Camille]

IV. BEST PRACTICES IN OTHER JURISDICTIONS

[c/o Camille/Abi]

V. FORUM ON ENVIRONMENTAL JUSTICE

[c/o Camille]

VI. HIGHLIGHTS OF THE RULE OF PROCEDURE FOR ENVIRONMENTAL CASES

The Proposed Rule of Procedure for Environmental Cases (“Proposed Rule”) aims to achieve the following objectives:

(a) To protect and advance the constitutional right of the people to health and to a balanced and healthful ecology;(b) To provide a simplified, speedy, and inexpensive procedure

for increased access to environmental justice, for the implementation of the precautionary principle, and for the enforcement of rights and duties recognized under the Constitution and environmental laws;(c) To ensure the just and equitable administration of remedies

and redress for violations of environmental laws; and(d) To enable the courts to effectively and efficiently manage

and monitor environmental cases.76

In meeting these objectives, the TWG formulated the Proposed Rule according to specific guidelines: (1) the rules must reflect the constitutional and jurisprudential concepts of liberalized standing requirements for plaintiffs in environmental suits; (2) the rules will facilitate access to green courts by providing for litigation tools such as citizen’s suits; (3) the rules should shape procedural elements of environmental litigation to implement the basic tenets of the precautionary principle; and (4) the rules must provide other innovations deemed necessary for the proper disposition of environmental justice.

The following elements of the Proposed Rule highlight the unique nuances created for the accomplishment of the abovementioned goals.

76 Rule 1, Section 5, Proposed Rules.

A. LIBERALIZED LOCUS STANDI AND CITIZEN’S SUIT

The Proposed Rule reflects a more liberalized standing requirement in environmental cases as already laid down by the Supreme Court in Oposa v. Factoran, Jr.77 The Court in Oposa ruled that representatives suing in behalf of succeeding generations is based on an “intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.”78

Moreover, the precautionary principle, as discussed in further detail below, supports the idea of intergenerational representation in order to achieve true ecological protection for the long-term, as opposed to mere economic sustainability.79

Hence, Rule 2, Section 6 of the Proposed Rule states:

Who may file – Any person or group of persons, by themselves or through their duly-authorized representatives, or in representation of others, including minors, or generations yet unborn, the government, people’s and non-government organizations and public interest groups, accredited or recognized by, or registered with any relevant government agency, indigenous peoples and local communities, may file a civil action involving the enforcement or violation of an environmental law.

(Emphasis added).

The language of this section demonstrates two important points. First, it enumerates broad categories of persons allowed to file an environmental suit lending to the concept that it is the rights of the people compromised in such cases.80 Second, the section specifically recognizes persons’ standing in bringing environmental suits as representatives for future generations yet unborn. This addition not only concretizes the landmark principle of intergenerational responsibility as established in Oposa, but also accounts for the ominous, long-lasting, and amorphous nature of environmental harm,

77 224 SCRA 792 (1993).78 Id. at 802-3. See also Henares Jr. v. Land Transportation Franchising and Regulatory Board, 505 SCRA 104 (2006).79 See Kiss, Alexandre, The Rights and Interests of Future Generations and the Precautionary Principle, published in The Precautionary Principle and International Law, edited by David Freestone and Ellen Hey, Kluwer International Law (1999).80 See e.g., Harding, Andrew, Practical Human Rights, NGOs and the Environment in Malaysia, as published in Human Rights Approaches to Environmental Protection, edited by Boyle, Alan E., and Anderson, Michael R., Clarendon Press (1996), for a case study on the role of NGOs in Malaysia enforcing environmental rights through a human rights approach.

which cannot easily be traced from a fine point of origin and time. Thus, plaintiffs are not faced with the difficulty of sustaining an environmental action due to procedural obstacles, such as an inability to link with scientific certainty a defendant’s alleged act to the environmental harm complained therein.

Standing is often a barrier in many potential environmental suits because it requires the plaintiff to show injury to himself. Breaches in environmental laws however, more often than not, do not give direct injury to a human person but rather destructs nature itself which could eventually harm someone. In other cases where violations of environmental laws do bring direct harm to humans, the harm is so small that it might not be worth the resources to bring suit. The emergence of class actions, and citizens suits however have given environmental claims a better chance of being heard in a court of law.

Class actions help make environmental claims reach a court of law by providing a way for a few individuals to bring an action in behalf of many others who are unable to bring individual actions.81 This way, it is cost-effective for plaintiffs to bring an action as they pool their resources together. It therefore becomes worth it to bring an environmental claim and defendants do not get away with their wrongdoings. Nonviable claims, which environmental violations often are, now become possible.

Class actions however are limited and also has its drawbacks. Its limitations include numerosity, commonality, typicality, and adequacy.82

(Federal rules of civil procedure rule 23). There are also other issues associated with class actions such as giving adequate notice to all class members. These issues are time-consuming and thus increases the cost of litigation. Also, the violation of the defendant in a class action suit is potentially magnified for the jury to scrutinize more seriously as compared to when a single plaintiff brings the suit based on the little harm the violation has caused him.

In other countries where class actions are more advanced, the negative traits of class actions in the United States are done away with. In Brazil for example, class actions, called collective actions, are not that much more

81 R. STEWART & J. KRIER, ENVIRONMENTAL LAW AND POLICY 316-24 (2d ed. 1978).82 Federal Rules of Civil Procedure Rule 23

expensive to bring than individual suits and the “risks to defendants, as well as the verdicts, are proportional to the actual damage suffered by each class member multiplied by the number of members,” as Brazil does not follow a jury system.83

The issue of adequate representation is also properly addressed in Brazilian courts. In Brazil, whenever a class action is filed, the Attorney General is always notified to see to it that the class is adequately represented throughout the case as he plays his role as an overseer.84

Another problem often encountered with class actions is the res judicata effect. Class actions bind all members of the class and thus their rights are affected by the outcome of the case. The United States however provide for notice to class members so that they could opt-out of the case and bring their own individual suit instead. When the action prays for some sort of injunctive relief however, they will be affected by the judgment nonetheless.

Citizen suits on the other hand allow private citizens to bring an action to sanction violators of the law. Specially in the environmental context, it has been used as a tool to bypass bureaucratic and political constraints that delay sanctions to violators or delay enforcement of environmental rights.85

Regulatory agencies who are supposed to enforce environmental rights often lack the personnel and are bombarded with red tape and thus they could not function properly.86 With the rise of citizen suits, citizens can play the role of a watch guard and bring actions to court as if they were the attorney general.

Unlike in class suits where the class members must show harm to their person, citizen suits do not have this requirement.87 Citizen suits are also different from class actions because they are not brought for a class of

83 Antonio Gidi, (CLASS ACTIONS IN BRAZIL--A MODEL FOR CIVIL LAW COUNTRIES, 51 Am. J. Comp. L. 311, 321 (2003). )84 Id at 399.85 See Barry Boyer and Errol Meidinger, PRIVATIZING REGULATORY ENFORCEMENT: A PRELIMINARY ASSESSMENT OF CITIZEN SUITS UNDER FEDERAL ENVIRONMENTAL LAWS 34 Buff. L. Rev. 833, 836 (1985)86 Id. 87 See Barry Boyer and Errol Meidinger, PRIVATIZING REGULATORY ENFORCEMENT: A PRELIMINARY ASSESSMENT OF CITIZEN SUITS UNDER FEDERAL ENVIRONMENTAL LAWS 34 Buff. L. Rev. 833, 836 (1985)

persons. Other individuals could join in as intervenors which constitute additional parties. In a class suit, the individual members of the class are considered as one party in the suit. Thus, the issue of res judicata which often is a problem in a class suit where class members do not have a real ability to opt out is not present in a citizen suit.

Citizen suits have been criticized however for violating a number of doctrines in the United States. The issue of standing which requires injury in fact for example is said to be ran over by the citizen suit. Many argue however that there is indeed an injury from procedural violationsl In addition, the Supreme Court of the United States has hinted that the separation of powers doctrine is breached whenever Congress allows for such in its statutes because it is the role of the executive branch to enforce the law, not Congress – by including a citizen suit provision, Congress has a tool to make sure agencies enforce laws.88

Strategic Litigation Against Public Participation (SLAPP) are actions brought by parties who want to prevent or deter suits adverse to them. SLAPP actions are famous in 1st amendment cases where one’s right to speech threatened by a libel claim. SLAPP cases are also famous in environmental disputes were small individual plaintiffs go against corporate giants who are in violation of the environmental laws. These defendants would often file actions against the plaintiffs to deter them from filing the suit against the defendant:

“A second attorney involved in many toxic tort actions stated that SLAPP suits "scare victims who have been exposed to toxic materials to death" and that his "clients are absolutely freaked out by the cases." [FN246] Litigation under the Racketeering Influenced and Corrupt Organizations Act (RICO) is another form of countersuit to which defense counsel resort, though less frequently. [FN247]” 33 Wm. & Mary L. Rev. 429

While citizen suits and SLAPP suits are still gaining ground as legal concepts in the Philippines, their recent inclusion in some key legislation shows a growing recognition of their efficiency and usefulness in

88 See id; 34 Colum. J. Envtl. L. 1

environmental enforcement, prosecution, and adjudication. Some of these laws include:

- Sec. 41 of the Clean Air Act (R.A. No. 8749)

SECTION 41. Citizen Suits. — For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts against:

(a) Any person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; or

(b) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or

(c) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under this Act or its implementing rules and regulations: Provided, however, That no suit can be filed until after thirty-day (30) notice has been given to the public officer and the alleged violator concerned and no appropriate action has been taken thereon.

The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimations, and shall, likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.

Within thirty (30) days, the court shall make a determination if the complaint herein is malicious and/or baseless and shall accordingly dismiss the action and award attorney's fees and damages.

- Sec. 52 of the Ecological Solid Waste Management Act (R.A. No. 9003)

SECTION 52. Citizen Suits. — For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts/bodies against:




The Court shall exempt such action from the payment of filing fees and shall, likewise, upon prima facie showing of the non-enforcement or violation complained of,

exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.

In the event that the citizen should prevail, the Court shall award reasonable attorney’s fees, moral damages and litigation costs as appropriate.

- Sec. 43 of the Clean Air Act

SECTION 43. Suits and Strategic Legal Actions Against Public Participation and the Enforcement of this Act. — Where a suit is brought against a person who filed an action as provided in Section 41 of this Act, or against any person, institution or government agency that implements this Act, it shall be the duty of the investigating prosecutor or the court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of this Act. Upon determination thereof, evidence warranting the same, the court shall dismiss the case and award attorney’s fees and double damages.

This provision shall also apply and benefit public officers who are sued for acts committed in their official capacity, there being no grave abuse of authority, and done in the course of enforcing this Act.

- Sec. 53 of the Ecological Solid Waste Management Act

SECTION 53. Suits and Strategic Legal Action Against Public Participation (SLAPP) and the Enforcement of this Act. — Where a suit is brought against a person who filed an action as provided in Sec. 52 of this Act, or against any person, institution or

government agency that implements this Act, it shall be the duty of the investigating prosecutor or the Court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourses of the person complaining of or enforcing the provisions of this Act. Upon determination thereof, evidence warranting the same, the Court shall dismiss the case and award attorney’s fees and double damages.

This provision shall also apply and benefit public officers who are sued for acts committed in their official capacity, there being no grave abuse of authority, and done in the course of enforcing this Act.

A special section was added to the Proposed Rule in order to qualify the type of suit that could be brought. Rule 2, Section 9 provides:

Citizen’s suit – Any Filipino Citizen may file an action to enforce rights or obligations under environmental laws. Upon the filing of a suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. Said order shall be published once by the plaintiffs in a newspaper of a general circulation in the Philippines. In the alternative, the plaintiffs may furnish copies of said order to all affected barangays.Persons who manifest their interest to intervene shall be joined as co-plaintiffs to the case and shall be bound by the judgment of the court.

While a plaintiff may avail of a class suit under Rule 3, Section 12 of the Revised Rules of Court,89 the Proposed Rule also contains a special

89 Section 12 provides: “Class suit.—When the subject matter of the controversy is one of the common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.”

provision for a citizen’s suit in an environmental case. The TWG proposed such a provision because of concerns on liberalizing class suits (e.g. finding that a minimum of 20 parties satisfies the requirement for numerousness). The TWG believed that such class suits might create the risk of groups of persons being able to file an environmental suit without being necessarily representative of the class they are supposed to represent. Also, giving plaintiffs an option whether or not to be joined in the class necessarily removes the main feature of a class suit, which is the inclusion of all the members of a class in the case filed albeit represented only by some of the plaintiffs who belong in the same class. Hence, under this alternative model, while a citizen’s suit can be instituted by one person, other persons may opt to join as a “co-plaintiff”.

Direct public participation can be instrumental in environmental enforcement.90 A potential benefit from allowing citizen’s suits is empowering citizens with negotiating clout against violators.91 In other words, the citizens’ legal and practical ability to litigate allows them to create cooperative relationships with alleged violators. This empowerment and resulting cooperation can then supplement alternative dispute solutions, such as the consent decree discussed further below.

Notably, a class suit in an environmental case may still be filed notwithstanding the Proposed Rule 2, Section 9, further providing the plaintiff with more avenues to litigate environmental claims.

The citizen suit provisions in Section 41 of Republic Act (R.A.) No. 8749 or the Clean Air Act92 and Section 52 of R.A. No. 9003 or the

90 See Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation Inc., 484 U.S. 49 (1987) (defining the scope of the citizen’s suit provision in the Clear Water Act).91 For a discussion on the important role of citizen’s suits in U.S. environmental protection, see Citizens Suits: The Teeth in Public Participation, Adam Babich, 25 ELR 10141 (1995).92 This provision provides:

SECTION 41. Citizen Suits. — For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts against:



Ecological Solid Waste Management Act93 focus on the violative conduct of the polluter or regulating government agency as opposed to the specific nature of the injury sustained. Both R.A. No. 8749 and R.A. No. 9003 require the citizen to notify the public officer and alleged violator concerned before filing a complaint. They also prohibit citizen suits where an appropriate action has been taken prior to the filing of a complaint.


The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimations, and shall, likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.

Within thirty (30) days, the court shall make a determination if the complaint herein is malicious and/or baseless and shall accordingly dismiss the action and award attorney's fees and damages.

93 This provision provides:

SECTION 52. Citizen Suits. — For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts/bodies against:

(d) Any person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; or

(e) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or

(f) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under this Act or its implementing rules and regulations: Provided, however, That no suit can be filed until after thirty-day (30) notice has been given to the public officer and the alleged violator concerned and no appropriate action has been taken thereon.

The Court shall exempt such action from the payment of filing fees and shall, likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.

The general structure of these citizen suit provisions is similar to the citizen suit provisions in U.S. environmental statutes. The U.S. Clean Air Act of 1970, a good representation of analogous provisions in other U.S. environmental statutes, requires potential plaintiffs to provide the violator as well as the federal agency with jurisdiction and, in some cases, a state agency with jurisdiction, notice before commencing a suit. The notice requirement “preserves the government’s role as the primary enforcer of environmental laws,” presenting federal and state government agencies the opportunity to take enforcement action.94

The legislative history of the U.S. citizen provisions reveal that their enactment was in the same period where “capture” theories were predominant, suggesting that regulatory agencies “were sometimes subject to sustained political pressure from regulated industries.”95 Regulatory agencies were thought to be “unduly sympathetic to the interests of the regulated industries,” because they had the resources to be heard in the regulatory process of decision-making.96 Citizen suits, designed to close the “resource gap between industry and public interest groups,” provided the opportunity for oversight of the regulatory enforcement process.97 Citizen suit provisions were intended to encourage public vigilance and to allow the government to benefit from technical work of information gathering and litigation by citizens.98 More importantly, the nature of the rights involved in environmental protection justified the unprecedented power given to citizens.99

While citizen suits appear to be a relatively new mechanism for the enforcement of regulatory statues, the concept of shared public and private enforcement is rooted in the history of Anglo-American law. A water pollution statute enacted in 1388 provided for a dual system of enforcement

In the event that the citizen should prevail, the Court shall award reasonable attorney's fees, moral damages and litigation costs as appropriate.

94 Trent A. Dougherty, Will Reisinger, and Nolan Moser, Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick up the Slack? 20 DUKE ENVTL. L. & POL'Y F. 1, 12 (2010).95 Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 MICH. L. REV. 163, 183-184 (1992); Matthew D. Zinn, Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen Suits 21 STAN. ENVTL. L.J. 81, 83 (2002).96 Barry Boyer and Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits under Federal Environmental Laws, 34 BUFF. L. REV. 833, 843-844 (1985).97 Id.; Zinn, supra note at 84.98 Dougherty, supra note at 15.99 Id.

at the instance of either public officials or private individuals.100 The difference was often in the remedy sought. Public authorities were generally interested in the punishment and deterrence of violations as well as the imposition of fines as a result thereof, while private individuals “were generally more interested in getting compensation for the injuries they had suffered and in preventing future injuries.”101

That private enforcement appeared to be common through the nineteenth century may be attributed to the absence of a developed distinction between public and private functions. A violation of community rules affected the entire community and its members so that it may be reasonably inferred that the encouragement of private individuals to prosecute wrongs increased their “investment in and commitment to the existing order.”102 By the industrial revolution, the shift in the basis of private enforcement appeared in numerous common informer statutes passed in England. These statutes provided “that parties aiding in the apprehension and conviction of violators would share in the fines collected as a result.”103

Similarly, the U.S. Supreme Court in the early decades of the last century, referred to qui tam actions providing private enforcers with a share of criminal fines. Private prosecution of criminal cases, without the financial incentive of in qui tam actions, was also a practice extensively used.104 The monopoly of the bureaucracy of public prosecution eventually took over private prosecutions.

B. SPEEDY DISPOSITION OF CASES

C. CONSENT DECREE

There are several other nuances in the Proposed Rule on Environmental Procedure that cater to the unique characteristics of environmental litigation. The first is the use of the consent decree, as a primary vehicle for resolution in the alternative of trial.

100 Boyer, supra note at 946-947.101 Id. at 949.102 Id. at 952.103 Id. at 953.104 Id. at 955

Proposed Rule 3, Section 4 states in part:

Duty of the judge - The judge shall put the parties and their counsels under oath and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The court may approve the agreement between the parties based on public interest and the public policy to protect the environment and issue a consent decree embodying said agreement.

The use of a consent decree is an innovative way to resolve environmental cases. It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court. The agreement is then subject to the approval of the court. Thus, the judge’s involvement in the process of consent decree is vital. The judge’s role shifts from that of an adjudicator into a mediator by fostering cooperation between two previously adverse parties.105

The model of the United States Environmental Protection Agency illustrates the advantages of a consent decree: (1) it encourages the parties to come up with comprehensive, mutually-acceptable solutions to the environmental problem, and since the agreement was arrived at voluntarily, there is a greater possibility of actual compliance; (2) it is open to public scrutiny; (3) it allows the parties to address issues other than those presented to the court; and (4) it is still subject to judicial approval and can be enforced through a court order.106

D. REMEDIAL MEASURES

A. TEMPORARY ENVIRONMENTAL PROTECTION ORDER/ENVIRONMENTAL PROTECTION ORDER

B. WRIT OF CONTINUING MANDAMUS

105 See Article: The Freeway with a Heart: My Life as a Consent Decree Judge in the Century Freeway Case, The Honorable Judge Harry Pregerson, 36 Sw. U. L. Rev. 291 (2007).106 See Framework for Strengthening Environmental Adjudication in the Philippines, Justice Consuelo Ynares-Santiago 52 Ateneo L.J. 744 (2008); see also e.g., U.S. v. The Boc Group, Inc., 2007 EPA Consent LEXIS 35 (W.D.W. 2007); U.S. v. Davis, et al. 1998 EPA Consent LEXIS 80 (D.R.I. 1998);

Environmental law highlights the shift in the focal-point for the initiation of regulation from Congress to government agencies.107 Thus, a government agency’s inaction, if any, has serious implications on the future of environmental law. Private individuals, to the extent that they seek to change the scope of the regulatory process, will have to rely on such agencies to take the initial incentives, which may require a judicial component. Accordingly, to the extent that individuals, interest groups, and corporations seek to change the nature and scope of the regulatory system, they will rely on prod agencies themselves to take the initial steps; and this prodding may require a judicial component. Accordingly, questions regarding the propriety of an agency’s action or inaction will need to be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the enforcement of the performance of a legal duty or the conduct of the tasks to which the writ pertains. Metropolitan Manila Development Authority (MMDA) et al. v. Concerned Residents of Manila Bay,108 introduces the writ of continuing mandamus and cited two cases decided by the Supreme Court of India as examples of its issuance: (1) Vineet Narain v. Union of India;109 and (2) M.C. Mehta v. Union of India.110 The Court en banc related these two cases to continuing mandamus as follows:

Under what other judicial discipline describes as ‘continuing mandamus’: the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.111

The Supreme Court of India has interpreted its judicial power to extend to the issuance of extraordinary remedial writs. The Indian Constitution provides the “Supreme Court under Article 32… [with the power] to issue writs and orders in the nature of habeas corpus, mandamus, certiorari,

107.? Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 VA. ENVTL. L.J. 461.108 G.R. No. 171947-48, December 18, 2008.109 1 SCC 226 (1998).110 4 SCC 463 (1987).111 MMDA v. Concerned Residents of Manila Bay, supra note 2.

prohibition, and quo warranto… for the enforcement of fundamental rights.”112 One author explains that the Indian Constitution uses the phrase, “in the nature of” as an “analogy to English writs.”113 Thus, “Indian courts can issue directions, orders, and writs other than prerogative writs.”114 The same author cited one of the Supreme Court of India’s earliest judgments to emphasize the courts’ liberal approach to granting remedial reliefs, stating that “[i]f the petitioner establishes a violation of his rights, the court will issue an appropriate remedy, irrespective of what remedy has been requested.”115

The Indian Supreme Court has also relied on Article 142 “to issue detailed guidelines to executive agencies and private parties for ensuring the implementation of the various environmental statutes and judicial directions.”116 There have been numerous instances of positive directions, such as when the Court directed a local body to make proper drainage provisions.117 The Court’s issuance of a writ of continuing mandamus served to monitor the implementation of its orders. It sought reports from government agencies of its progress implementing such orders and appointed committees to conduct “substantial empirical research and provided valuable insights in cases that have dealt with vehicular pollution, solid waste management and forest conservation.”118 Fact-finding commissions, expert committees, and the involvement of amicus curiae have further benefitted the monitoring of environmental cases.119

Vineet Narain v. Union of India was a consequence of the Central Bureau of Investigation’s (CBI) interrogations and raids due to the arrest of an alleged Hizbul Mujahideen official. The raids produced “the seizure of two notebooks containing detailed accounts of vast payments made to persons identified only by initials,” which “corresponded to the initials of various high ranking politicians… and of high ranking bureaucrats.”120 Since

112 S.P. Sathe, Judicial Activism in India, 6 WASH. U. J. L. POL’Y 29 (2001).113 Id.114 Id.115 Id. (citing T. C. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440).116 Speech delivered by Hon. K.G. Balakrishnan, Chief Justice, Supreme Court of India, during the Seminar on Law and Environment, on May 23, 2009.117 Municipal Council Ratlam v. Vardichan, 4 SCC 1626 (1980).118 Speech supra note.119 Id.120 Shubhankar Dam, Vineet Narain v. Union of India: “A Court of Law and not Justice” Is the Indian Supreme Court Beyond the Indian Constitution, P.L. 2005, SUM, 239-248 (2005) (citing Vineet Narain v.

no investigations were conducted regarding the contents of the dairies, a writ petition was filed in public interest alleging, among others, “that the government agencies like the CBI and the revenue authorities had failed to perform their duties… to investigate the matters.”121 The Supreme Court of India held that the CBI “had not carried out their public duty to investigate the offences disclosed.”122 The Court adopted continuing mandamus to direct the CBI “to fairly and properly conduct and complete investigations into alleged acts of corruption… and to report to itself regarding the investigation.”123 The Court monitored the investigations “only because the superiors to whom the investigating authorities were supposed to report were themselves involved or suspected to be involved in the crimes.”124 Finally, the Court emphasized that “the task of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary process of the law would then take over.”125 By another petition, Vineet Narain obtained “directions as to how the CBI could be reorganized so as to ensure its independence as an investigation agency.”126

M.C. Mehta v. Union of India involved a petition for the issuance “in

the nature of” a writ of mandamus to restrain tanneries along the Ganges River from releasing trade effluents into the river which have not undergone treatment due to the absence of the necessary treatment plants.127 The Supreme Court of India granted following reliefs: (1) ordering certain tanneries to cease operations until they set up treatment plants as approved by the State Board; (2) ordering tanneries that already set up primary treatment plants to continue to keep said plants in working order; (3) ordering tanneries that manifested their intent to establish primary treatment plants to cease operations if the said plants are not established by a certain deadline; and (4) to order the appropriate government agency to enforce the Court’s order.128 In this case, the third court order that required monitoring set a definite deadline for the respondent tanneries to establish a primary treatment plant, which failure would result in the cessation of operations.129

Union of India, supra note 3).121 Id.122 Vineet Narain v. Union of India, supra note 3.123 Sathe, supra note 6 (citing Vineet Narain v. Union of India, supra note 3). 124 Id.125 Vineet Narain v. Union of India, supra note 3.126 Sathe, supra note 6 (citing Vineet Narain et al. v. Union of India, A.I.R. 1998 S.C. 889).127 M.C. Mehta v. Union of India, supra note 4. 128 Id.129 Id.

The case of T.N. Godavarman Thirumulpad v. Union of India,130

involving forest management and conservation, is particularly instructive in showcasing the extent of the Court’s powers through the issuance of a continuing mandamus. A three judge bench of the Court issued a continuing mandamus to deal with issues including conversion of forest land for non-forest purposes. As of March 2008, approximately 2,000 interlocutory applications relating to forest issues have been disposed under this single writ. In addition, several committees including a Compensatory Afforestation Management and Planning Authority and a Central Empowered Committee were created in pursuance of the orders.

C. WRIT OF KALIKASAN

As presently worded, the Writ of Kalikasan provides the same remedies, provisional and final, which may already be availed of through the Green Courts. The only distinction between the Writ of Kalikasan and the general procedure in the proposed Rules is one of scope: the Writ of Kalikasan is supposed to be issued in cases of great magnitude. The magnitude in question is constituted of the environmental damage or injury extending to 2 or more provinces.

This presents very practical problems for the judiciary. The generally held apprehension is the filing of petitions, otherwise cognizable by the Green Courts, before the Court of Appeals and the Supreme Court respectively. The specific concern with respect to filing with the Supreme Court is that the petitions may present fundamentally questions of fact.

The procedure provided for under the Writ of Kalikasan is inconsistent with the nature of a writ as an extraordinary remedy. The procedure is conducive towards further litigation and might defeat the very purpose for which the Writ is proposed, i.e. as an urgent and immediate relief.

Finally, with respect to the remedies available, the writ of Kalikasan duplicates, rather than complements, the Green Courts. The following is a table between the proposed reliefs under the Writ of Kalikasan and its

130 2 SCC 267.

corresponding availability in the provisional remedy of Environmental Protection Order and as a final relief in the Green Courts.

On another note, there is no interface between the Court of Appeals and the Green Courts with respect to the evidence presented and how they shall be treated in the event an another action is filed. Likewise, while the remedies duplicate, the Writ is also incomplete inasmuch as it does not provide for the award of damages.

The following memorandum aims to recast the Writ of Kalikasan as a different, and unique, remedy, drawing as models available writs in the country and practices in other jurisdictions.

I. Nature of the Writ

At present, there are three available Writs available under the Philippine legal system. These are the Writs of Habeas Corpus, Amparo and Habeas Data. These Writs share common features: Immediacy, specificity and, insofar as the proceedings leading to their issuance are concerned, summary in character.

a. Immediate Similar to the writs of habeas corpus, amparo and habeas data, the issuance of the writ of kalikasan must be immediate in nature. This entails the use of a simplified procedure for its application.

b. Specific Remedy: The writ of kalikasan must contain a very specific remedy or set of remedies. Again, this draws from the concept of a writ as reflected in the three other writs available under Philippine jurisdiction. This also aims to address an overlap between the remedies available under the rules governing the green courts and the special remedy/ies available under the writ of kalikasan. This will obviate a preliminary resort to the Court of Appeals where the remedies under the green courts will suffice, in consistency with the doctrine of the hierarchy of courts.

c. Summary; Dispenses with extensive litigation: To distinguish the writ of kalikasan from other remedies already available before the Green Courts, it must not be issued pursuant to a litigious process; the process must be summary as befitting an extraordinary writ. The summary process will likewise facilitate prompt disposition of matters before the court.

As drafted, however, the Writ of Kalikasan’s procedure could lend itself to extensive litigation, owing to the comprehensive reliefs available under it. These reliefs could only be granted on solid factual foundations, denominated as “environmental damage” and “injury”. Both are conclusions of law which rely on extensive findings of fact.

The fact-finding process is most vulnerable to, first, the legal maneuvers of the parties and two, to the capability of the court to analyze data, most of which would, in most probability, be highly technical in character. With respect to the latter, the Chamber of Mines had indicated that, at least with matters pertaining to mining, the Department of Environment and Natural Resources, through the Mining and Geosciences Bureau, would be better equipped to deal with the factual questions which may arise in proceedings or controversies arising from mining. They urge a consideration of the doctrine of primary jurisdiction in favor of the DENR. While this does not, in any way, preclude the Court of Appeals from assuming jurisdiction in an otherwise justiciable controversy, it may be worth considering in light of the observations set forth.

II. Writ of Kalikasan vis a vis EPO and other writs

The following reliefs are provided by both the Writ of Kalikasan and the Environmental Protection Order (EPO): (1) to enjoin an act in order to protect, preserve, or rehabilitate the environment;131 (2) to direct an act in

131 Section 16(a), Rule 7 of the Draft Rule provides:

The relief that can be granted by the writ shall be the following:

a) Directing respondent to cease and desist from undertaking activities or committing acts or omissions in violation of environmental laws resulting into environmental destruction or damage xxx.

order to protect, preserve, or rehabilitate the environment;132 and (3) to direct the submission of reports regarding the execution of the court’s orders.133

The remaining reliefs134 that may be granted through the Writ of Kalikasan are also available as reliefs that may be granted in an ordinary case filed before the Green Courts.

The nature of the Writ of Kalikasan does not appear to be analogous to other writs and processes that are currently available in our jurisdiction. Although the Sub-Committee on the Rule of Procedure for Environmental Cases stressed that this writ is an extraordinary remedy, it appears to borrow

132 Section 4(f), Rule 1 of the Draft Rule provides:

(f) Environmental protection order (EPO) refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.

133 Section 16(d), Rule 7 of the Draft Rule provides:


xxx

d) Directing the respondent public official, private person or entity, or government agency to make periodic reports on the execution of the final judgment;

134 Section 16(b), (c), and (e), Rule 7 of the Draft Rule provides:


xxx

b) Directing the respondent public official, government official, private person or entity, to preserve, rehabilitate or restore the environment;

its features from the following remedies: (1) the writ of amparo;135 (2) the writ of habeas data;136 (4) provisional remedies particularly the writ of preliminary injunction;137 and (5) the writ of search and seizure in civil actions for infringement of intellectual property rights.138

As a prerogative writ, the writ of amparo is not a criminal, civil, or administrative suit, and thus amparo does not suspend such actions.139 The Writ of Kalikasan also provides that it does not preclude the institution of criminal or administrative actions, but it does preclude the institution of civil actions.140

The writ of habeas data provides for a summary hearing,141 which appears to be consistent with the specific reliefs granted by the writ.142 The

c) Directing the respondent public official, private person or entity, or government agency to effectively monitor strict compliance with the orders of the court;

e) Such other reliefs which relate to the protection of the right of the people to a balanced and healthful ecology or to the preservation, rehabilitation, or restoration of the environment.

135 Rule on the Writ of Amparo, A.M. No. 07-9-12-SC.136 Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC. 137 RULES OF COURT, Rule 58. 138 Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights, A.M. No. 02-1-06-SC.139 “Prerogative Writ” in Annotation to the Writ of Amparo, A.M. No. 07-9-12-SC.140 Section 19, Rule 7 of the Draft Rule provides:

Sec. 19. Institution of separate actions. – The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate criminal or administrative actions. However, when a civil action has been commenced, no separate petition for the writ shall be filed involving the same issues.

141 Section 15 of the Rule on the Writ of Habeas Data.142 Section 16 of the Rule on the Writ of Habeas Data provides:

Section 16. Judgment. – The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. (Emphasis supplied)

Writ of Kalikasan provides for a time frame within which the hearing must be conducted.143 Although the expedited nature of the hearing was intended to address the magnitude and severity of the environmental damage subject of the writ, the reliefs granted by the Writ of Kalikasan are broad and general.144

Provisional remedies constitute temporary measures availed of during the pendency of the main action. This limitation seems to coincide with the allowance for the ex parte application of a temporary restraining order in particular.145 The writ of search and seizure in civil actions for infringement of intellectual property rights is unique in that its effectivity depends on whether a civil action is filed subsequently. It provides for an ex parte application, but even if granted, the writ will be set aside if the expected adverse party fails to file a case within a certain period.146 While the Writ of

143 Section 11, Rule 7 provides:

Sec. 11. Hearing. –The court shall hear the petition and may call a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall not extend beyond sixty (60) days from date of initial hearing and shall be given the same priority as petitions for habeas corpus. When the exigencies of justice so require, the parties may be allowed to submit additional evidence.

144 Section 16, Rule 7 of the Draft Rules.145 RULES OF COURT, Rule 58, Section 5.146 The appropriate provisions of the Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights respectively provide:

Section 2. The writ of search and seizure. — Where any delay is likely to cause irreparable harm to the intellectual property right holder or where there is demonstrable risk of evidence being destroyed, the intellectual property right holder or his duly authorized representative in a pending civil action for infringement or who intends to commence such an action may apply ex parte for the issuance of a writ of search and seizure directing the alleged infringing defendant or expected adverse party to admit into his premises the persons named in the order and to allow the search, inspection, copying, photographing, audio and audiovisual recording or seizure of any document and article specified in the order.

Section 20. Failure to file complaint. — The writ shall also, upon motion of the expected adverse party, be set aside and the seized documents and articles returned to the expected adverse party if no case is filed with the appropriate court or authority within thirty-one (31) calendar days from

Kalikasan entails an expedited process of hearing the case, it appears to grant reliefs that are permanent in nature.

III. Scope of the Writ of Kalikasan:

As already pointed out, there is a need to sharply distinguish between the remedies available under the writ of Kalikasan and the remedies already available in the Green Courts. This involves, inter alia, providing for a unique remedy, hitherto unavailable, which may effectively address environmental controversies of great magnitude.

An important concern for any party seeking to enforce environmental rights are the evidentiary matters which supports such a claim, apart from affidavits and other documents which he could procure independently for himself. A key component of any case is the competence and admissibility of evidence accompanying the complaint. In environmental cases, the presence or absence of such evidence is crucial: it may lead to the successful prosecution of the claim for enforcement of environmental rights or it may lead to the dismissal of the case. The latter brings with the bar of finality: res judicata, even when the initial claim is a valid one.

The Writ of Kalikasan may be refashioned as a tool to bridge the gap between allegation and proof by providing a remedy for would-be environmental litigants to compel the production of information within the custody of the government. The Writ would effectively be a remedy for the enforcement of the right to information about the environment.

1. Scope of Fact-finding Powera. Anything related to the issuance, grant of

government permit issued; Information controlled by the government

b. This may cover the information in the following documents

i. Environmental Compliance Certificate

the date of issuance of the writ.

ii. Other governmental records

In addition, the Writ may also be employed to compel the production of information, subject to constitutional limitations, by the respondent. This function may be analogous to a discovery measure, and may be availed of upon the application for the Writ. At this, the Writ of Kalikasan may be distinguished from the three other Writs, where the respondent is always the respondent.

Procedural safeguards may be placed in the Writ to prevent its use as a mechanism for “fishing”. This may include a clear showing of a violation of a law, rule or regulation. This effectively narrows the instance in which the Writ may be applied for against private entities. Judicial discretion also comes into play in this aspect. Notably, the Court has already provided for the remedy of Civil Searches and Seizures (the English “Anton Piller” Order) as a remedy in alleged violations of the Intellectual Property Code. To compel the production of evidence is a considerably tempered and restrained exercise of judicial power.

A greater function of the Writ may be to employ the court as an avenue for the mediation of environmental disputes. This would entail the use of the court itself as mediator, to distinguish it from its function as adjudicator. This is reflective of the current trend of developments in environmental litigation which is to use the courts less as avenues for dispute resolution and more for the resolution of controversies in a meditative capacity. This is likewise more conducive towards the early resolution of the controversy. Finally, this makes central use of the consent decree, a key innovation introduced in the proposed Rules.

The sole function of the court in this instance is to compel the parties to meet. The filing of the application for the Writ commences the process and enables the court to assume jurisdiction. Upon assuming jurisdiction, the Court shall be empowered to compel the production of evidence and issue subpoenas to make this power effective.

The mediation may lead to the issuance of an order embodying the terms of agreement between the parties concerned, i.e. as a consent decree.

The court-presided mediation may lead to a referral of the controversy to the appropriate Green Court or administrative agency for resolution. In the event the mediation proceedings succeed, it could lead to the issuance of

a consent decree, which, as a judicially-approved document, functions as a judgment on the controversy.

Upon the approval of the consent decree, the said decree can be considered a final judgment on the matter. A component of the said decree could be the monitoring capability embodied in the writ of continuing mandamus. This may require the submission of compliance reports from the government agency or respondent tasked to undertake the activities stipulated in the consent decree. This Information in the form of compliance submissions from the parties

IV. Forum Shopping and Concurrent Jurisdiction

Once an application for the Writ of Kalikasan is filed, all other remedies must first be suspended. This is to afford the Court an opportunity to mediate the conflict in a non-adversarial environment and bring about resolution of the controversy without further litigation. This will also afford the parties to clarify the issues before the court in light of the information gathered through the exercises of the court’s power. The court may also, in the exercise of its discretion, add the gathered information to the record of the case, which it may then refer to the appropriate tribunal or agency.

As worded, the proposed Writ of Kalikasan may either be filed before the Court of Appeals, in any of its divisions and the Supreme Court. This is ostensibly to address the concern of magnitude and the questions of jurisdiction arising from the environmental damage occurring in wide areas. This concern may be addressed, however, by a separate provision in the proposed rules providing for a direct resort to the Court of Appeals for cases involving a great magnitude of environmental damage (pegged at damage to two or more cities or provinces at present) and the application, mutatis mutandis, of the proposed Rules to such controversies.

The Writ of Kalikasan may be made available as readily as the Writ of Habeas Corpus, and may be obtained before the Regional Trial Court, the Court of Appeals and the Supreme Court. This is to reflect the judicial policy of prioritizing environmental rights. It will be independently available, regardless of whether a separate proceeding is pending or not.

As an extraordinary remedy, the proceedings do not necessarily lead to res judicata with respect to the justiciable issues between the parties. The function of the court is merely meditative, albeit a consent decree may be issued pursuant to the mediation. Then, and only then, will it attain the character of a final decision and constitute res judicata as to the issues already resolved by the terms of the consent decree.

The Writ does not preclude the separate filing of an action with a court or administrative agency: While great emphasis is placed on the meditative function of the court in the kalikasan proceedings, this cannot foreclose the possibility of litigation in the event the factual questions or issues demand the extensive presentation and analysis of evidence. Here, the information already obtained pursuant to the Writ becomes pivotal because it may be ordered by the court to be a part of the records of the case. The court likewise exercises discretion whether the foregoing shall constitute a part of the record once it refers the matter to a Green Court, for adjudication pursuant to the Environmental Rules of Procedure.

The litigation process may not necessarily be judicial in character, although the extensive scope of the proposed rules suggests that most controversies are properly cognizable by the courts.

VII. APPLICATION OF THE PRECAUTIONARY PRINCIPLE

Common to the aforementioned features, the key nuances of the Rule of Procedure for Environmental Cases have been developed to address the practical and procedural obstacles linked to environmental litigation. Some of these novel provisions were made with the guidance of the precautionary principle in order to formulate an optimal set of rules that allows for facilitated access to courts in environmental cases, and a more appropriate form of litigation tailored to the unique and complex characteristics of the same.

The precautionary principle derives from a paradigm shift in environmental protection. Traditional environmental protection was measured by the concept of sustainability, an economic yardstick by nature.147 Namely, the goal of protection was anthropocentric, because it only considered the use and availability of natural resources based on human

147 See Hohmann, Harald, Graham & Troutman/Martinus Nijhoff (1994).

consumption.148 Environmental protection later evolved into a different ecological approach. Ecological protection extended beyond mere sustainability, and now took into account the preservation of an environment for the sake of its preservation, and that could be enjoyed by future generations.149 Thus, long-term foresight was imperative.150 It is from a more nuanced version of this paradigm that the precautionary principle originates.

Rule 1, Section 6, paragraph (i) of the Proposed Rule provides the following definition:

Precautionary principle states that when human activities may lead to morally unacceptable harm that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that harm. Morally unacceptable harm refers to harm to humans or the environment that is (1) threatening to human life or health; (2) serious and effectively irreversible; (3) inequitable to present or future generations; or (4) imposed without adequate consideration of the human rights of those affected.151

With this definition as the basis, the incorporation of the precautionary principle into the Proposed Rule focuses on two areas: (1) the plaintiff’s ability to proceed with litigation notwithstanding the potential scientific uncertainty of the causal link between the act of the defendant and the harm alleged; and (2) the shifting of the burden of persuasion to the defendant.

Principle 15 of the Rio Declaration in 1992152 is a widely accepted definition of the precautionary principle. One particular feature of the principle serves as the basis for a complainant’s ability to sue without unwarranted hindrances:

148 Id. at 2-4.149 Id.150 Id. 151 This definition is based on the working definition of the precautionary principle according to the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) published March 2005.152 Rio Declaration at the United Nations Conference on Environment and Development (UNCED), June 14, 1992.

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation.153

In light of this feature, the Proposed Rule makes clear that the evidentiary threshold of the plaintiff corresponds to the long-term preventative nature of the precautionary principle. Thus, Rule 16, Section 1 states in part:

Precautionary Principle – The court shall be guided by the precautionary principle and evidence of full scientific certainty shall not be required from the party alleging the environmental damage or threats thereof…

(Emphasis added.)

In addition, the Proposed Rule does not require the plaintiff to establish full scientific certainty when determining the issuance of a special provisional remedy. Rule 2, Section 4 states in part:

Temporary EPO – If it appears from the verified complaint that there is a prima facie violation of any environmental law, the court may issue ex parte a temporary EPO to be effective until lifted by the court. The court in resolving the prayer for the issuance of a temporary EPO shall not require full scientific certainty as basis for the issuance thereof…

(Emphasis added.)

The precautionary principle also creates one more unique result. Since the plaintiff does not have to provide the causal link based on certain scientific fact between the act and the environmental harm in cases of this nature, the burden of evidence necessarily shifts to the defendant. In this regard, Proposed Rule 16, Section 3 states:

Shifting the burden of evidence – Where the plaintiff has proven the environmental damage or injury, and defendants appear to be responsible therefore, the burden of evidence to prove otherwise shall shift to the defendants.

In other words, according to this proposed rule, defendants in this scenario would now have the burden to persuade the court that there is no causal link between their actions and the environmental harm alleged.

153 Rio Declaration, 34 ILM 874, (1992).

Notably, the precautionary principle does not apply to criminal cases as such a move would alter the stricter quantum of proof required (guilt beyond reasonable doubt) for determining criminal liability.154 The shifting of burden of evidence as proposed therefore, only applies to the civil actions.

a. The German Vorsorgeprinzip…The vorsorgeprinzip are a set of regulations on air pollution.155

b. Development and Key Materials in International Lawi. Differing formulations of the Precautionary Principle

have been articulated in several instruments. There is, however, uncertainty as to its status under international law.156

ii. Most recent and authoritative articulations of the Precautionary Principle

1. The Rio Declaration, Principle 152. UN Framework Convention on Climate Change

Article 3 (3)3. The Kyoto Protocol4. 1992 Convention on Biological Diversity

II. Precautionary Principle as Tool for Adjudication

a. Administrative Adjudicationb. Judicial Adjudication

i. Practice in Other Jurisdictions1. Australia – Leatch v. National Parks and Wildlife2. India - Mehta v. Union of India

154 Rule 16, Section 1 of the Proposed Rules partially states: “However, in determining the criminal liability, the precautionary principle shall not apply.”155 La Franchi, Scott Surveying the Precautionary Principle’s Ongoing Global Development: The Evolution of an Emerging Environmental Management Tool. 32 Boston College Environmental Affairs Law Review 679 (2005) at 681.156 See Hickey James. E. and Walker, Vern R. Refining the Precautionary Principle in International Environmental Law 14 Virginia Environmental Law Journal 423 (1995) at pp. 432-436.

III. Criticisms of the Precautionary Principle

a. Lack of consensus as to its formulation leads to definitional difficulties and a lack of consensus as to its true meaning, leading to a spectrum of formulations, from “weak” to “strong”

b. Strong versions of the precautionary principle can actually lead to paralysis in decision-making157

Weak and Strong Versions of the Precautionary Principle

The Supreme Court has recognized the varying degrees to which the precautionary principle is applied. Without academic consensus, the Court found it best to consider all versions of the precautionary principle in order to determine what would is most compatible for purposes of the Rules of Procedure on Environmental Cases.

The varying versions of the precautionary principle cause different implications. On one hand, the most cautious and weak versions suggest, quite sensibly, that a lack of decisive evidence of harm should not be grounds for refusing to regulate. Regulation might be justified even if one cannot establish a definite connection between, for example, low-level exposures to certain carcinogens and adverse effects on human health. In particular, regulation might be urged, in such cases, if its costs are relatively low. Thus, the 1992 Rio Declaration sensibly states that “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” The Ministerial Declaration of the Second International Conference on the Protection of the North Sea, held in London in 1987, states in the same vein: “Accepting that in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence.” Similarly, the United Nations Framework Convention on Climate Change offers cautious language:

157 Sunstein, Cass R. Beyond the Precautionary Principle 151 University of Pennsylvania Law Review 1003.

“Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing . . .[regulatory] measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.”

The Wingspread Declaration goes further: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause-and-effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof.” The first sentence of this quote is a mildly more aggressive version of the statement from the Rio Declaration; it is more aggressive because it is not limited to threats of serious or irreversible damage. But the component of reversing the burden of proof, as stated in the second sentence adds to the strong favorability of the environment, further depending on what is being required of the proponent holding the burden of proof.

In Europe, the precautionary principle is sometimes understood in an even stronger way, suggesting that it is important to build “a margin of safety into all decision making.” According to one definition, the precautionary principle means “that action should be taken to correct a problem as soon as there is evidence that harm may occur, not after the harm has already occurred.” In a comparably strong version, it is said that the precautionary principle mandates that when there is a risk of significant health or environmental damage to others or to future generations, and when there is scientific uncertainty as to the nature of that damage or the likelihood of the risk, then decisions should be made so as to prevent such activities from being conducted unless and until scientific evidence shows that the damage will not occur.

The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted in 2000, appears to adopt a strong version as well. The Final Declaration of the First European Seas at Risk Conference says that if “the ‘worst case scenario’ for a certain activity is serious enough then even a small amount of doubt as to the safety of that activity is sufficient to stop it taking place.”

Professor Richard Stewart usefully distinguishes among four differentversions of the precautionary principle, capturing both weak and strong types:

1. Nonpreclusion Precautionary Principle. Regulation should not be precluded by the absence of scientific uncertainty about activities that pose a risk of substantial harm.

2. Margin of Safety Precautionary Principle. Regulation should include a margin of safety, limiting activities below the level at which adverse effects have not been found or predicted.

3. Best Available Technology Precautionary Principle. Best available technology requirements should be imposed on activities that pose an uncertain potential to create substantial harm, unless those in favor of those activities can show that they present no appreciable risk.

4. Prohibitory Precautionary Principle. Prohibitions should be imposed on activities that have an uncertain potential to impose substantial harm, unless those in favor of those activities can show that they present no appreciable risk.

This account shows that the precautionary principle might be described both in terms of the level of uncertainty that triggers a regulatory response and in terms of the tool that will be chosen in the face of uncertainty (as in the case of technological requirements or prohibitions).

In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms.

Various Definitions of the Precautionary Principle

1. World Charter for Nature of 1982, Article 11 (b)158

158 United Nations General Assembly Resolution 37/7, of 28 October 1982). It is the first international endorsement of the principle.

“Activities which are likely to pose significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed;”

2. North Sea Declaration of 1987, Article VII159

”Accepting that in order to protect the North Sea from possibly damagingeffects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substanceseven before a causal link has been established by absolutely clear scientific evidence.”

3. New South Wales Protection of the Environment Administration Act 1991, Sec. 6 (2a)160

“…if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”

4. The Rio Declaration of 1992, Principle 15

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

159 Second International Conference on the Protection of the North Sea: Ministerial Declaration Calling for Reduction of Pollution, Nov. 25, 1987.160 The same provision provides for two guidelines in the implementation of the principle,” In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options,”

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5. United Nations Framework Convention on Climate Change 1992, Article III. Principle 3161

“The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties.”

6. Final Declaration of the First European Seas at Risk Conference of 1994 (Preamble and Annex I)162

Preamble, “…to ensure that appropriate preventative measures are taken when there is reason to believe that substances or energy introduced into the marine environment or activities taking place in the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relationship between inputs/activities and effects; this applies to the entire spectrum of environmental policy making and to all types of human impact on the environment.”163

Annex I, Principle 1 164 , “Lack of scientific certainty regarding cause and effect is not used as a reason for deferring measures to prevent harm to the environment. Science, while important in providing evidence of effect, is no longer required to provide proof of a causal

161 U.N. Framework Convention on Climate Change, May 9, 1992.162 First European SEAS AT RISK Conference, Copenhagen, 26-28 October 1994.163 The definition even lays down the scope of the principle. 164 Annex I enumerates five principles of precautionary action. Principle 3 is equally important because it shifts the burden of proof from the “regulator to the person responsible for the harmful activity.” Principle 3, “the "burden of proof" is shifted from the regulator to the person or persons responsible for the potentially harmful activity, who will now have to demonstrate that their actions are not/will not cause harm to the environment;”

link between pollutant/disturbing activity and effect, and where no clear evidence is available one way or the other the environment must be given the "benefit of the doubt."

x x x x x

Annex I, Principle 4, “If the "worst case scenario" for a certain activity is serious enough then even a small amount of doubt as to the safety of that activity is sufficient to stop it taking place;”

7. European Community Treat of 1997, Art. 174 (2)

“Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”

Note: The EC Treaty contains only one explicit reference to the precautionary principle, namely in the title on environmental protection. However, in practice, the scope of this principle is far wider and also covers consumer policy and human, animal and plant health.

Since the precautionary principle is not defined in the Treaty or in other Community instruments, the Council in its Resolution of 13 April 1999 requested the Commission to develop clear and effective guidelines for the application of the principle. The Commission's Communication is a response to this request (See Communication from the Commission on the Precautionary Principle, COM [2000]1)

In its Communication, the Commission analyses the factors that trigger use of the precautionary principle and the associated measures. It then proposes guidelines for applying the principle.

8. Wingspread Declaration of 1998

” When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause-and-effect relationships are not established scientifically. In this context the proponent of the activity, rather than the public, should bear the burden of proof.”

9. 1999 Canadian Environmental Protection Act (CEPA 1999)

“Whereas the Government of Canada is committed to implementing theprecautionary principle that, where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

Note: The precautionary principle has been incorporated into CEPA 1999 in the “Preamble”, “Administrative Duties” section and in the provisions with respect to controlling toxic substances.

10.Cartagena Protocol on Biosafety to the Convention on Biological Diversity of 2000 (Articles 10.6, 11.8; Annex III)165

Articles 10.6 and 11.8, "Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of an LMO on biodiversity, taking into account risks to human health, shall not prevent a Party of import from taking a decision, as appropriate, with regard to the import of the LMO in question, in order to avoid or minimize such potential adverse effects.”Annex III, “Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a particular level of risk, an absence of risk, or an acceptable risk.”166

165 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal (2000). Elements of the precautionary approach find reflection in other parts of the Cartagena Protocol such as the Preamble and Article 1, Objective.

166 Annex III: Risk Assessment, General Principles (4).

11.United States Clean Air Act of 2000167

Title 42, Chapter 85, “…allowing an adequate margin of safety…”168

12.Paul McFedries, Precautionary Principle (2002)169

“…action should be taken to correct a problem as soon as there is evidence that harm may occur, not after the harm has already occurred.”

13.Capitol Hill Hearing Testimony Concerning the Cloning of Humans and Genetic Modifications Before the Sub-committee on Labor, Health and Human Servs., S. Appropriations Comm., 107th Cong. (2002)170

“…the precautionary principle mandates that when there is a risk of significant health or environmental damage to others or to future generations ,and when there is scientific uncertainty as to the nature of that damage or the likelihood of the risk, then decisions should be made so as to prevent such activities from being conducted unless and until scientific evidence shows that the damage will not occur.”

Jurisprudence on the Precautionary Principle

A. International Court of Justice

The International Court of Justice acknowledged the importance of precaution in its 1997 decision171 adjudicating the dispute between Hungary and Slovakia over water regulation on the Danube. Hungary had suspended in 1989, and then in 1992 had unilaterally terminated, a 1977 treaty governing a hydroelectric dam and navigation improvement project that had been negotiated by Hungary and Czechoslovakia during the Soviet dominance of Eastern Europe. After it broke away from the Soviet Union in the late 1980s, Hungary argued that the treaty was a “mistake,” and that it 167 42 U.S.C. § 7409(b)(1) (2000).168 Hence, in the face of scientific uncertainty, regulation is called for. Sunstein169Paul McFedries, Precautionary Principle, WORD SPY, Jan. 23, 2002, at http:// www.wordspy.com/words/precautionaryprinciple.asp. in Sunstein170 Statement of Dr. Brent Blackwelder, President, Friends of the Earth), in Sunstein.171 Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7 (Sept. 25).

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was entitled to terminate the treaty on the basis of an “ecological state of necessity.” Hungary pointed to possible ecological risks that included “the replacement of Danube groundwater flow with stagnant upstream reservoir water, the silting of the Danube, eutrophication, and the threat to aquatic habitats from peaking power releases.” Based on these threats, Hungary argued that the precautionary principle imposed “an erga omnes obligation of prevention of damage” and invoked Article 33 of the International Law Commission Draft Articles on the International Responsibility of States, which permits countries to avoid an international duty if necessary to “safeguard an essential interest of the State against a grave and imminent peril.”

The International Court of Justice agreed that Article 33 incorporated concepts of precaution, but interpreted this doctrine narrowly, finding that a country could invoke the principle as a basis for terminating a treaty only if it could demonstrate “by credible scientific evidence that a real risk will materialize in the near future and is thus more than a possibility.” The Court then ruled that Hungary’s evidence of potential environmental damage had failed to meet this standard and thus that Hungary remained bound by the treaty, pursuant to the principle of pacta sunt servanda, requiring countries to adhere to their treaty commitments. But the Court also stated that “new knowledge of ecological risk does impose a duty on parties to a complex river basin development treaty to take the information into consideration in the ongoing implementation of the treaty and management of the river.” The Court thus gave Hungary a partial victory by ordering the two countries “to undertake good faith negotiations consistent with both international environmental norms such as sustainable development and the law of international water courses to come up with a new management scheme” for the dam project.

Judge Weeramantry wrote a separate opinion emphasizing that the interrelated principles of environmentally sustainable development and cautionary environmental assessment are erga omnes rules of customary international law. This opinion says that the precautionary principle includes a requirement to prepare environmental assessments and to monitor all large water development projects: “EIA, being a specific application of the larger principle of caution, embodies the larger obligation of continuing watchfulness and anticipation.” In the earlier 1995 Nuclear Tests Case, although the Court failed to reach the merits, two judges mentioned the precautionary principle as an emerging feature of international

environmental law. One of these judges also referred to the precautionary principle in the 1996 Nuclear Weapons Case.

B. International Tribunal for the Law of the Sea

The Southern Bluefin Tuna case172 had a promising beginning, with the International Tribunal for the Law of the Sea (ITLOS) issuing strong provisional measures designed to protect an overfished species, but its ending was unfortunate, when an ad hoc arbitral tribunal declared that both it and ITLOS lacked jurisdiction over the case because of conflicting dispute-resolution provisions in the relevant treaties. Despite the inconclusive ending of this case, the provisional measures issued by ITLOS may still be important for future disputes. The Tribunal tried to freeze the status quo, and ordered Japan to stop its unilateral “experimental fishing” in order to give the bluefin tuna a chance to recover while the countries developed new management arrangements. In its Order, the Tribunal used the following language:

[P]arties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna…

…[Although there is] scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and… although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration.

Judge Alexander Yankov, referring to this language, wrote later that “there are some statements of the Tribunal in the Order which appear to reveal its stand in favor of essential elements of the precautionary approach.” Judge Tullio Treves added in his concurring opinion that, although he “understood the reluctance of the Tribunal in taking a position as to whether the precautionary approach is a binding principle of customary international law,” nonetheless “a precautionary approach seems to me inherent in the very notions of provisional measures.”

172 Southern Bluefin Tuna Case (Austl. and N.Z. v. Japan), Provisional Measures Order (ITLOS), Aug. 27, 1999.

In the MOX Plant Case,173 the Tribunal issued another important provisional measures ruling, stating that the duty to cooperate required Ireland and the United Kingdom to exchange information concerning the risks created by the expansion of the Sellafield nuclear facility in the United Kingdom, to monitor the effects of this plant on the marine environment in the Irish Sea, and to work together to reduce these risks. This case was then transferred to an arbitral panel, which again found procedural obstacles that blocked its ability to reach the merits of the dispute. But the filings of the two parties show agreement that the precautionary principle is a central norm applicable to the dispute. Ireland’s Memorial quoted Article 2(2)(a) of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) as defining the duties of countries under the precautionary principle and as reflecting “a rule of general international law amongst European States.” Ireland also submitted that “[t]he precautionary principle has been recognized as being inherent in the approach adopted by UNCLOS” and that “the United Kingdom did not challenge Ireland’s characterization of the precautionary principle as having the status of customary international law.” The United Kingdom responded in its Rejoinder by saying that “the United Kingdom was, and is today, guided by the precautionary principle as elaborated in European Community law in the context of its Strategy 2001-2020,” and that “the United Kingdom’s practice in respect of the MOX Plant was entirely consistent with a precautionary approach.”

C. European Court of Justice

The most significant precautionary principle decision by the European Court of Justice occurred in 1998, when the Court upheld the decision of the European Commission (EC) to ban all bovine animals and all beef and veal products from the United Kingdom, based on the EC’s judgment that all risks of transmission from bovine spongiform encephalopathy (mad cow disease) could not be excluded.174 In response to the argument of the English National Farmers’ Union that this decision violated the principle of proportionality, the Court acknowledged that the principle of proportionality required that the least onerous alternative be chosen, but ruled also that “[w]here there is uncertainty as to the existence or extent of risks to human

173 The MOX Plant Case (Ireland v. U.K.), (ITLOS 2001), 41 I.L.M. 405 (2002).174 Case C-147-96, The Queen v. Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise, ex parte National Farmer’s Union, David Burnett and Sons Ltd., R.S., 1998 E.C.R. I-2211.

health, the institutions may take protective measures without having to wait until the reality and seriousness of the risks become fully apparent.”

D. World Trade Organization

In the case entitled EC Measures Concerning Meat and Meat Products, the Appellate Body of the World Trade Organization noted that the precautionary principle “continues to be the subject of debate” and that its status is “less than clear,” but also stated that the principle is regarded by “some” judges and commentators “as having crystallized into a general principle of customary international environmental law.” In its conclusion, the Appellate Body followed a precautionary approach by ruling that panels evaluating scientific data should accept that “responsible, representative governments commonly act from perspectives of prudence and precaution where risks of irreversible, e.g. life terminating damage to human health are concerned.”

E. Australia

Leatch v. National Parks and Wildlife Service175 was a merits appeal against the granting of a license to Shoalhaven City Council to take and kill endangered fauna from an area where a road was proposed to be constructed. The third party objector claimed that the precautionary principle should be applied to refuse the license because of scientific uncertainty surrounding the effects on endangered fauna following from the road construction, particularly on the giant burrowing frog and the yellow bellied glider.

The appeal was upheld and the license refused. The Court held that while almost every recent international environmental treaty, convention and policy document, as well as the Intergovernmental Agreement on the Environment (IGAE), referred to ecologically sustainable development and in particular to the precautionary principle, the National Parks and Wildlife Act, under which the Director-General of the National Parks and Wildlife Service granted the license, did not expressly do so:

When Part 7 of the Act is examined it is readily apparent that the precautionary principle, or what I have stated this may entail, cannot be said to be an extraneous matter. While there is no express provision requiring consideration of the

175 (1993) 81 LGERA 270.

‘precautionary principle,’ consideration of the state of knowledge or uncertainty regarding a species, the potential for serious or irreversible harm to an endangered fauna and the adoption of a cautious approach in protection of endangered fauna is clearly consistent with the subject maker, scope and purpose of the Act.

…[T]he precautionary principle is a statement of commonsense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.

…[C]aution should be the keystone to the Court’s approach. Application of the precautionary principle appears to me to be most apt in a situation of a scarcity of scientific knowledge of species population, habitat and impacts. Indeed, one permissible approach is to conclude that the state of knowledge is such that one should not grant a license to ‘take or kill’ the species until much more is known. It should be kept steadily in mind that the definition of ‘take’ in… the Act includes disturb, injure and a significant modification of habitat which is likely to adversely affect the essential behavioral patterns of a species. In this situation I am left in doubt as to the population, habitat and behavioral patterns of the Giant Burrowing Frog and am unable to conclude with any degree of certainty that a license to ‘take or kill’ the species should be granted.

In Friends of Hinchinbrook Society Inc v. Minister for Environment176

the Minister had granted development consent for a proposed tourist resort located near the Great Barrier Reef. In 1981, the Great Barrier Reef was included in the World Heritage List, pursuant to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage. Friends of the Hinchinbrook Society contended that the Minister had improperly exercised his powers conferred under the World Heritage 176 (1997) 142 ALR 622 and (1997) 87 LGERA 10.

Properties Conservation Act and failed to have regard to the precautionary principle. It brought a challenge in the Federal Court.

The Court held that if the precautionary principle was a mandatory consideration for the Minister, that would flow from a proper construction of the relevant legislation and of its scope and purpose, rather than as a result of Australia’s adoption of policies and objectives relevant to a national strategy on the environment. The precautionary principle, in the form adopted by the IGAE, was not a consideration that the Minister was bound to take into account in exercising powers conferred under the World Heritage Act. However, the Minister did take into account the need to exercise caution in the situation of scientific uncertainty:

It is true that the Minister did not expressly refer to the precautionary principle or some variation of it, in his reasons. But it is equally clear that before making a final decision he took steps to put in place arrangements designed to address the matters of concern identified in the scientific reports and other materials available to him. The implementation of these arrangements … indicate that the Minister accepted that he should act cautiously in assessing and addressing the risks to World Heritage values … he took into account the commonsense principle that caution should be exercised where scientific opinion is divided or scientific information is incomplete.

In Lawyers for Forests Inc v. Minister for the Environment, Heritage and the Arts and Gunns Limited,177 the Federal Court considered the extent and nature of environmental impact assessment information required by the Commonwealth Minister before deciding whether to approve an action under the Environment Protection and Biodiversity Conservation Act (EPBC Act) as well as the nature and extent of some of his condition-making powers.

Lawyers for Forests (LFF) challenged the decision by the then Minister for the Environment, Heritage and the Arts (Minister) under the EPBC Act to approve Gunns’ proposal to develop and operate a pulp mill. The challenge centered around the validity of a number of approval

177 FCA 330 (9 April 2009).

conditions which require Gunns to establish effluent trigger levels for implementing approved response strategies and to carry out hydrodynamic modeling of the effluent plume in Bass Strait. LFF argued that these investigations should have been carried out before the Minister granted his approval, not as a condition of the approval. LFF contended that the approval was not authorized EPBC Act, because the Minister did not take into account the precautionary principle pursuant to the Act.

The EPBC Act defines the precautionary principle as “the lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.” The Act provides that the Minister must take account of the precautionary principle in deciding whether to approve a controlled action, to the extent he can do so consistently with its other provisions. Before deciding whether to approve a controlled action, the Act requires the Minister to consider principles of ecologically sustainable development. These principles are defined to include a host of matters, of which only one is the precautionary principle. The Court found that the Minister was not required to take into account the precautionary principle in isolation, nor give it pre-eminence over other relevant criteria specified in the EPBC Act.

LFF argued that the Court must evaluate whether the Minister gave a

proper, genuine and realistic consideration to the matters which he was required to have regard. The Court held that it was doubtful whether the Minister was required to have regard to the precautionary principle at all, because the principle only comes into play where there exist threats of serious or irreversible environmental damage. The Court concluded that the evidence indicated that the Minister did not believe such a threat existed. In any event, the Minister appeared to give effect to the precautionary principle by applying conditions which endeavored to close the gap of scientific uncertainty by requiring further data collection and hydrodynamic modeling. Based on the Court’s decision, applicants will need evidence to support a contention that the Minister was obligated but failed to consider the precautionary principle and try and avoid legal arguments which invite the court to stray into a consideration of the merits of the Minister’s decision.

F. Canada

In Spraytech v. Hudson (Town),178 a landscaping and lawncare company challenged a bylaw passed by the Town of Hudson (a suburb of Montreal) which regulated, and largely prohibited, the use of pesticides. Spraytech argued that since Quebec’s Cities and Towns Act did not expressly give municipalities the power to regulate pesticides, Hudson had no jurisdiction to pass the bylaw and that the bylaw was therefore void. Hudson argued that its power to pass the bylaw came from the section in the Act that allowed bylaws that “secure peace, order, good government, health, and general welfare in the territory of the municipality.”

The Supreme Court ruled that Hudson had the jurisdiction to regulate pesticide use and upheld the bylaw. The Court found that it was reasonable to conclude that the purpose of the bylaw was to limit the use of possibly harmful pesticides in order to promote the health of the citizens of Hudson. This purpose was squarely within the “health” component of the Cities and Towns Act. The interpretation of the bylaw respects international law’s precautionary principle. In the context of the precautionary principle’s tenets, the Hudson’s concerns about pesticides fit well under their rubric of preventive action.

G. Germany

The Kernkraftwerk Krummel case179 heard before the Supreme Administrative Court of Germany is of interest. The Court overturned the lower court’s decision holding that the administration had an obligation to check whether radiation from the Krummel nuclear power station stayed within the limits of precaution required by the Atomic Energy Act. The Court held that if the latest scientific evidence indicated that earlier norms were now insufficient, the administration should set higher precautionary standards. While the weighing of risks was one for the administration, not to be replaced by the opinion of the courts, the lower court should have checked whether the administration had ignored or paid unacceptably little interest in the increase in leukemia cases noted in the vicinity of the plant.

H. India

178 2001 SCC 40, [2001] 2 S.C.R. 241.179 Judgment of 21.8.1996, BverwG 11 C 9.95.

In AP Pollution Control Board v Nayudu,180 the Supreme Court of India was considering a petition claiming that certain hazardous industries proposed to be established by the respondents without the necessary certificate from the State Pollution Control Board could not proceed. The Court discussed the difficulties faced by environmental courts globally in dealing with scientific data, citing articles on the desirability of a specialist environmental court and the status and application of the precautionary principle:

The ‘uncertainty’ of scientific proof and its changing frontiers from time to time has led to great changes in environment concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens’ Welfare Forum v Union of India and others, 1995 (5) SCC 647, a three Judge Bench of this Court referred to these changes, to the ‘precautionary principle’ and the new concept of ‘burden of proof’ in environmental matters. Kuldip Singh, J after referring to the principles evolved in various international Conferences and to the concept of ‘Sustainable Development,’ stated that the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including The Environment (Protection) Act 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law.

The Supreme Court discussed the development of the precautionary principle in replacing the Assimilative Capacity Principle adopted at an earlier point of time:

The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete

180 Supreme Court of India 1999 SOL Case No. 53, 27 January 1999, unreported.

danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to ‘serious’ or ‘irreversible’ as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterized the principle as still ‘evolving’ for though it is accepted as part of the international customary law, ‘the consequences of its application in any potential situation will be influenced by the circumstances of each case.’

The Court also discussed the issue of burden of proof in cases involving the application of the precautionary principle. It is necessary that the party attempting to preserve the status quo by maintaining a less-polluted state should not carry the burden of proof. The party who wants to alter it must bear this burden. The precautionary principle suggested that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

I. New Zealand

Ashburton Acclimatisation Society v. Federated Farmers of New Zealand Inc.181 involved an appeal, referring back to the Planning Tribunal for consideration, its report for a national water conservation order affecting the Raikaia River. The contest was between conservationists, who wished the flow and characteristics of the river to be conserved, and farmers who wished to use the water from the river for irrigation. It was submitted that if implemented the report would unduly prejudice the rights and expectation of the Farmers Federation.

At the heart of the appeal was the ground that the Tribunal had misconstrued the Water and Soil Conservation Act by placing undue emphasis upon protection of outstanding features of the river and by failing to pay sufficient regard to the competing need of out of stream users, in particular the needs of primary industry and the community. The Tribunal 181 [1988] 1 NZLR 78 (CA).

had regarded the sustainability of the amenity afforded by the waters in their natural state as being the overriding consideration.

The appellate court held that the Water and Soil Conservation Act, as amended, placed emphasis on conservation of natural waters. Once it was determined that the amenity afforded by the waters in their natural state should be recognized and sustained, primacy was to be accorded to that object, and it should not be defeated by striving to achieve a balance for other users of water. The needs of primary industry were to be given weight in considering an application for a conservation order, but this was to be done bearing in mind that the primary object of the Act was the conservation of waters in their natural state.

Greenpeace New Zealand Inc v. Minister for Fisheries182 involved a total allowable commercial catch (TACC) for orange roughy set by the Minister of Fisheries. Greenpeace applied for judicial review of the decision on the basis that the orange roughy fishery was depleted and that overfishing had endangered its survival. The New Zealand Fishing Industry Association and others argued that “the research into the fishery has not yet been sufficient to establish that the concerns of the applicant or the Ministry scientists are justified and sees an excessive reduction as being not only unjustified, but as imposing serious and unnecessary losses on the industry.” Greenpeace argued that, in considering the TACC, the Minister was required to apply the precautionary approach.

The Court held that the precautionary approach would also apply in New Zealand. In the case under consideration, there was no statutory obligation for the precautionary approach to be adopted under the Fisheries Act 1983, but the statute reflected international obligations accepted by New Zealand and that there is in that context at least a movement towards the view that in questions of such moment, a degree of caution is appropriate. The fact that a dispute exists as to the basic material upon which the decision must rest, does not mean that necessarily the most conservative approach must be adopted. The obligation is to consider the material and decide upon the weight which can be given it with such care as the situation requires. In the end this is a weighing and not a decisive factor. The Court held that the precautionary approach must be applied by the Minister in formulating a TACC. In assessing the information upon which a decision must be based,

182 High Court of New Zealand, CP 492/93, 27 November 1995, unreported.

the precautionary principle ought to be applied so that where uncertainty or ignorance exists, decision-makers should be cautious.

VIII. STRATEGIC LEGAL ACTION AGAINST PUBLIC PARTICIPATION (SLAPP)

A Strategic Lawsuit Against Public Participation or Strategic Legal Action Against Public Participation (SLAPP) is a phenomenon that finds its roots in U.S. litigation. It generally refers to a civil lawsuit for monetary damages filed against non-governmental individuals and groups as retaliation for the latter’s petitioning or communication to the government (or other relevant body) on an issue of public concern, or to enforce a right or law such as environmental rights or statutes.183 These suits are typically reactions to past or anticipated opposition to such issues, and are usually instituted not to vindicate any cognizable interest. Instead, a SLAPP is brought to court to chill opposition.184 Many of these SLAPP actions are brought within the context of environmental litigation, and thus deserve the consideration of the Supreme Court in formulating the Rules of Procedure for Environmental Cases.185

A SLAPP can be effective because it diverts attention away from the petitioning party and can delay resolution of the original or real issue. In addition, persons instituting a SLAPP typically have more resources to sustain litigation against smaller petitioning parties.186 In this regard, a SLAPP suit is used to financially burden a petitioning party with frivolous litigation. In the realm of environmental law where public participation is central, chilling litigation serves as a serious obstacle to the enforcement of environmental rights.

Constitutional Basis for Protection against a SLAPP Suit

183 See Mcbride, Edward W., The Empire State SLAPPs Back: New York’s Legislative Response to SLAPP Suits, 17 Vt. L. Rev. 925 (1993). SLAPP was initially analyzed by Penelope Canan and George W. Pring of the University of Denver.184 Id. at 926.185 See Coover, Sheri, The 2nd Annual Goddard Forum Symposium: Global Warming: Causes, Effects and Mitigation Strategies for States and Localities, 12 Penn St. Entl. L. Rev. 263, 264 (Winter 2004).186 See id., at 263.

The original basis for measures against SLAPP can be found in the United States Constitution. First Amendment of the Constitution of the United States of America (and several state constitutions in their own manner) provides citizens with the right to free speech and the right to petition the government to redress grievances of public matter.187 It is from this superior law that states have enacted Anti-SLAPP legislation.188

Moreover, under the Noerr-Pennington doctrine, a citizen’s right to petition the government should be protected regardless of whether the motivation for doing so is to advance their own interests.189 Typically, in order for a person to avail of the protection of an Anti-SLAPP law, he or she must have communicated the complaint or information regarding the public matter to the branch or agency of government instituting the SLAPP.190

Given the constitutional basis for Anti-SLAPP suits, one would logically think that the protection afforded persons in such situations applies only when a government body institutes a SLAPP. Such is the case in the state of Florida.191 This limitation, however, is the exception to the general practice.192 Other jurisdictions, such as the state of Oregon, are broader in application, and have thus formulated Anti-SLAPP legislation to protect persons from SLAPPs instituted by private parties as well.193 For purposes of adopting a more effective and comprehensive Rules of Procedure for Environmental Cases, the Supreme Court has adopted the view that SLAPP protection should also include protection against private parties such as corporations.

Forms of SLAPP Suits

187 See First Amendment, The Constitution of the United States of America. 188 See Mcbride, at 925.189 See Coover, at 267-68. Footnote 23 states: “The Noerr-Pennington doctrine is based on two Supreme Court cases - Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965). Although both of these cases dealt with anti-trust litigation, the Noerr-Pennington doctrine has been extended to protect other action in which a citizen or organization petitions the government. Barnes Found v. Township of Lower Merion, 927 F. Supp 874 at 876 (E.D.Pa. 1996).”190 See Mcbride, at 927.191 Coover, at 277.192 Id.193 See Oregon Anti-SLAPP Law - Title 3. Remedies and Special Actions and Proceedings, Chapter 31. Tort Actions, Special Motion to Strike, ORS § 31.150 (2007).

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SLAPP suits can come in many seemingly valid forms of action such as defamation suits,194 and tortious interference with contractual relations195

as they have been filed in the United States. Some Anti-SLAPP laws recognize that a SLAPP can be brought before a court as a claim (instituted as a lawsuit in the first instance), a counterclaim (brought within litigation instituted against the SLAPP party)196, and a cross-claim197. This broad approach is in line with a comprehensive approach to environmental enforcement, especially since there is more than one way for alleged environmental violators to institute a SLAPP.

Modes of Anti-SLAPP Procedure

Given the different aforementioned forms of SLAPP, Anti-SLAPP legislation executes protection against SLAPP typically in a form of a defense. Some U.S. state jurisdictions refer to this as qualified or conditional immunity from civil liability.198 If a person falls under the requirements mentioned above, he or she can avail of qualified immunity.

Some jurisdictions provide this immunity through a Special Motion to Strike199, Motion to dismiss, and/or Motion for Summary Judgment.200 In most of these motions, the court sets hearings on the matter and relies on affidavits and pleadings in making their determination.201

In the state of Maine, filing a motion to dismiss under an Anti-SLAPP provision can be done within a 60-day period following the service of the complaint, or at the court’s discretion, at any later time upon terms the court determines proper.202 Given the potentially complex and tedious concerns of 194 Northon v. Rule, 494 F. Supp. 2d 1183, 2007 U.S. Dist. LEXIS 51537 (D. Or. 2007) (Oregon – motion to strike applied to defamation suit).195 Hometown Properties, Inc. v. Fleming, 680 A.2d 56 (R.I. 1996) (Rhode Island – anti-slapp applied to tortious interference with contractual relations claim).196 See Note under Washington Anti-SLAPP law, ARCW § 4.24.510 (2009), citing history at 2002 c 232 §2.197 Florida Citizen Participation in Government Act -- Strategic Lawsuits Against Public Participation (SLAPP) suits by governmental entities prohibited, Fla. Stat. §768.295 (2009).198 See e.g. Title 9. Courts and Civil Procedure Generally, Chapter 33. Limits on Strategic Litigation Against Public Participation, R.I. Gen. Laws §9-33-2 (2009).199 See Oregon Anti-SLAPP Law.200 See Coover, at 277-78.201 See Oregon Anti-SLAPP Law, at par. (4).202 Osborn and Thaler, Feature: Maine’s Anti-SLAPP Law: Special Protection Against Improper Lawsuits Targeting Free Speech and Petitioning, 23 Maine Bar J. 32, 34 (Winter 2008).

establishing that a claim or counterclaim is a SLAPP, adopting this Maine provision is ideal because it gives parties a “soft” period to resolve the matter, and the judge the discretion to do the same at a later time. 203

Moreover, after the court has decided that a SLAPP exists, it must dismiss the SLAPP claim unless the non-moving party shows that the SLAPP target initiated a “sham petition” (described below in greater detail), which action was made in bad faith or intended to harass a passive enforcer or alleged violator of the original issue.204

Other jurisdictions provide SLAPP protection in a more preventative manner. The state of Georgia, for example, requires that a party initiating a suit also submit a special verification with its pleading.205 The party initiating the claim and his or her counsel must sign the verification.206 The signed verification guarantees, among other things, that the “claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.”207

If the claim does not have with it a verification that meets these requirements, the claim shall be stricken unless the party makes the corrections within 10 days after the omission is called to its attention.208 If claim is verified, but violates the Anti-SLAPP law, the court upon motion or its own initiative, shall impose upon the persons who signed the verification, sanctions which may include dismissal of the claim and an order to pay to the other party reasonable expenses plus attorney’s fees.209 Including a similar provision to the Environmental Rules could add another layer of protection from frivolous suits.

In Oregon, the defendant has the initial burden to establish that the SLAPP claim arises out of an act protected by the constitution.210 If the defendant meets this, the burden then shifts to the plaintiff to produce

203 See id.204 See id.205 See Exercise of rights of freedom of speech and right to petition government for redress of grievances; legislative findings; verification of claims; definitions; procedure on motions; exception; attorney’s fees and expenses, §O.C.G.A. 9-11-11.1 (2009).206 Id.207 Id.208 Id.209 Id.210 Oregon Anti-SLAPP Law, at par. (3).

evidence to support a prima facie case that the lawsuit is not a SLAPP. 211 If plaintiff is successful, then the courts deny the motion to strike.212 Rhode Island’s Anti-SLAPP law is different insofar as the SLAPP plaintiff has the burden of proving that the defendant’s petition was a sham petition and thus did not qualify for immunity.213 In both these examples, the burden-shifting aspect is that which makes the Anti-SLAPP motion to dismiss different from the motion to dismiss falling under the normal rules of civil procedure.

The Washington Anti-SLAPP law provides for a more definitive burden of proof for the SLAPP plaintiff in a defamation suit. It states that the defamed party must show by clear and convincing evidence that the defendant did not act in good faith when alleging a SLAPP.214 In contrast, the Anti-SLAPP law in Georgia suggests that neither party has the burden of proof on a motion to dismiss or strike under its Anti-SLAPP law “because this issue is a matter of law for the trial court’s determination based upon the pleadings rather than upon evidence presented by either party.”215

A “SLAPP-back” is a method for a party targeted by an alleged SLAPP, to counter that SLAPP by instituting his or her own SLAPP. Some jurisdictions such as Oregon, California, and Rhode Island have Anti-SLAPP-back provisions that provide for damages to be awarded to a plaintiff who successfully debunks the assertion that his or her claim was a SLAPP action.216 In Oregon, the court can direct a defendant found to have brought a frivolous Anti-SLAPP motion to strike to pay reasonable costs and attorney fees to the plaintiff defending against the motion.217 In California, the court is authorized to direct costs against a defendant if it is found that the motion to strike was merely made to cause delay.218 Other jurisdictions, such as Pennsylvania do not have such provisions.

211 Id.212 Id.213 Coover, at 278.214 See Gilman v. MacDonald, 74 Wn. App. 733, 875 P.2d 697, review denied, 125 Wn.2d 1010, 889 P.2d 498 (1994); Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 46 P.3d 789 (2002).215 Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232, 543 S.E.2d 65 (2000), aff'd, 275 Ga. 2, 561 S.E.2d 431 (2002).216 Coover, at 280.217 Id.218 Id.

As a matter of policy, Rhode Island does not allow SLAPP-Backs, as they find the ruling (and its corresponding potential damages, costs, and fees awarded) on a motion to dismiss based on an Anti-SLAPP legislation to be sufficient in resolving the matter.219

Other jurisdictions allow, though not explicitly, the use of SLAPP-backs to battle SLAPPs.220 The targets of original SLAPPs are attracted to using SLAPP backs because of potential damages to be awarded in their favor.221 The disadvantage of using this strategy is that it would entail more costly litigation and further delay the already chilled original action seeking to enforce environmental rights.222

For purposes of the Rules of Procedure for Environmental Cases, the Supreme Court of the Philippines took into consideration all these modes of anti-SLAPP measures and developed its own rules that are best suited for environmental litigants in this jurisdiction. Due process for all parties of the case is a primary consideration in these decisions.

Prohibition against Sham Petitions

As mentioned above, courts in several jurisdictions must dismiss a claim that is found to be a SLAPP unless the SLAPP plaintiff establishes that the SLAPP target originally engaged in a sham petition against the SLAPP plaintiff (e.g. a citizen’s group puts forth a sham petition against a government agency intended only to harass that agency). This made way for the doctrine of “sham exception” to SLAPP suits.

The U.S. Supreme Court developed a two-part test to determine if an action that is filed with the government falls under the sham exception.223

First, the Court identified that a “sham” petition is baseless in that “no reasonable litigant could realistically expect success on the merits.”224

Second, a “sham” petition is directed at injuring the opposition through the

219 See Palazzo v. Alves, 944 A.2d 144, 2008 R.I. LEXIS 33 (R.I. 2008).220 See Stetson, Mamie, Reforming SLAPP Reform: New York’s Anti-SLAPP Statute, 70 N.Y.U.L. Rev. 1324, 1351-1353 (1995).221 See id.222 See id.223 See Coover at 268, citing Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-62 (1993).224 Id.

use of government process, as opposed to the outcome of the process. 225 For purposes of the Environmental Rules, it would be advisable to add language to an Anti-SLAPP provision reflecting the court’s ability to dismiss a SLAPP unless the original petition against the government or other alleged violating body was a sham petition as defined under U.S. laws. This ruling reflects the involvement of jurisprudence in determining the difficult issues associated with SLAPP.

Compensatory and Punitive Damages, Reasonable Costs and Attorney’s Fees

To further the policy of providing disincentives to instituting SLAPPs, Anti-SLAPP legislation provides courts with the authority to award compensatory and punitive damages, reasonable costs, and attorney’s fees to successful movants against SLAPPs.226 Delaware, Minnesota and Rhode Island provide for punitive damages for cases where it is established that the suit was brought for the purpose of harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of petition, speech or assembly.227 In Hawaii, a court should direct a plaintiff found instituting a SLAPP the greater amount of $5,000 or actual damaged incurred by the defendant, plus costs, attorney’s fees, and any additional sanctions it may deem necessary.228

Conversely, in Oregon, if the court determines that a SLAPP-back was instituted (meaning the defendant responded with a SLAPP of his/her own in violation of the law), then the defendant should pay reasonable costs and attorney fees.229

Georgia provides that attorney’s fees and expenses may be requested by motion at any time during the course of the action but not later than 45 days after final disposition, including but not limited to dismissal by the plaintiff of the action.230 Notably, failure to request for damages in the

225 Id.226 Coover, 279-280.227 Id., at 279.228 Id., at 279-280.229 Id., at 280.230 Georgia Anti-SLAPP Law, at par. (f).

original adjudication of SLAPP issues may bar a party from requesting for such damages on appeal.231

Our Supreme Court has taken into consideration the importance of awarding damages, litigation costs and attorney’s fees to the successful party in a SLAPP determination. It recognized that the aim is to not only defray the costs of excess litigation, but also to establish a disincentive for parties to institute a SLAPP.

The Role of Government in SLAPP Cases

Some U.S. jurisdictions, such as Washington, Nevada and Pennsylvania, provide that a government agency may intervene or participate in the lawsuit.232 In some of these states, the agency to which the communication was made has the option of providing the defense against a lawsuit that pertains to the exercise of the defendant’s free speech.233 In Nevada, the Attorney General may replace the government agency to which the communication was made in defending a SLAPP action.234

In Florida, the governmental entity that is found to violate this section shall report such a ruling to Attorney General no later than 30 days after order is final.235 The Attorney General shall then report to Cabinet, Senate president and Speaker of the House.236

Given these practices, in the Philippines, the Supreme Court assessed the role of appropriate government agencies and the Department of Justice in the Rules of Procedure for Environmental Cases.

Voluntary Dismissal of a Lawsuit by a Plaintiff

In cases where the SLAPP is in the form of an initial claim, Georgia provides that a voluntary dismissal of such lawsuit by plaintiff does not preclude imposition of a sanction under the law.237

231 See Palazzo, at 33.232 Coover, at 280.233 Id.234 Id.235 Florida Anti-SLAPP Law, at par. (6).236 Id.237 See Hagemann v. Berkman Wynhaven Assoc., L.P., 290 Ga. App. 677, 660 S.E.2d 449 (2008).

Other jurisdictions are more lenient. The Anti-SLAPP law in New York for example, contains a safe-harbor provision that gives the SLAPP plaintiff a period in which he or she may voluntarily withdraw the SLAPP without fear of being penalized for the same.238 In this regard, a sanctions motion cannot be filed at least twenty-one days after being served, and the original filer of the lawsuit may withdraw the suit during the twenty-one days without impunity.239 This creates an effective incentive to withdraw a SLAPP, but also allows the SLAPP filer to enjoy the chilling effect of his or her lawsuit for twenty-one days without sanction.240

Admission of Evidence and Preclusion of Recovery

Oregon has a provision states that if the plaintiff (the party accused of instituting a SLAPP) wins the SLAPP motion, the fact that the determination has been made and the substance of the same may not be admitted into evidence at any later stage of the case.241 The determination also does not affect the burden of proof standard applied to the proceeding.242 The Philippine Supreme Court has taken into account the ramifications of allowing evidence submitted during a SLAPP hearing, to be admitted in the subsequent trial.

IX. CRIMINAL PROCEDURE FOR ENVIRONMENTAL CASES

The TWG has also proposed a stringent provision with regard to bail in environmental criminal actions. Proposed Rule 12, Section 3 states:

No bail during inquest – During inquest, the suspect detainee is not entitled to bail during inquest.

The TWG is weighing the importance of this strict provision and attempting to strike a balance between the rights of the accused and the rights of the complainant in an environmental case. For obvious reasons, a stringent bail provision would serve as a deterrent against environmental crimes.238 Stetson, at 1345.239 Id.240 Id.241 See Oregon Anti-SLAPP Law, at par. (5) (a).242 Id., at par. (5)(b).

IV. CONCLUSION: EXPERIENCE OF OTHER STATES IN ENVIRONMENTAL LAW

I. On Types of Environmental Court

A. Specialized Courts (New South Wales, Australia; New Zealand; Vermont, USA)

B. Specialized Court Branches or “Green Benches” (Philippines, Netherlands, Finland, Thailand, Kenya Supreme Court)

C. Quasi-Judicial Bodies (US Environmental Protection Agency; Philippines’ Mines Adjudication Board, Pollution Adjudication Board; Kenya’s National Environmental Tribunal)

D. Other specialized forums (India’s special court-appointed commissions; Japan’s and Korea’s non-judicial ADR bodies; Kenya and Austria’s special environmental Ombudsmen

II. On Standing

A. Liberal Approach (India, Finland, Belgium, Austria, Canada, USA, Australia, South Africa)

B. Strict Approach (Ireland, Bangladesh)

C. Standing of NGOs (Malaysia Bakun Dam case)

III. On Specialized Environmental Prosecutors (Brazil)

IV. On Expert Evidence

A. Court-appointed and -paid independent experts (Ontario, Canada)

B. Rely solely on expert witnesses presented by the parties, the so-called “battle of the experts” (US EPA, Vermont)

C. Rely on government experts (New York City)

D. Appoint experts (scientists, engineers, etc.) as judges, with equal weight given to their opinions as to the legal judges on the panel (Sweden has a lawyer and a chemical engineer as judges on one panel)

E. Keep lists of volunteer experts in various disciplines in academia, think tanks, consulting firms, etc., on whom the court can call (Denmark, Belgium)

F. Make parties’ experts swear to represent only the court, not the parties (although the parties are paying the experts) or be in contempt of court (New South Wales)

G. Require parties’ experts to focus only on issues of professional disagreement, possibly putting both sides’ experts on the witness stand together and having them respond directly to each others’ points of disagreement – so-called “hottubbing” (New South Wales)

H. Utilize site visits to see, evaluate, and make informed judgments (Ireland, Brazil, Vermont);

I. Appoint special commissions of experts to investigate and report their recommendations back to court (India);

J. Rely completely on the record of the preceding decision maker or court for expert testimony (Tasmania, Australia; Finland)

K. Employ trial de novo, starting over with testimony from the same or different experts (Vermont)

V. On Alternative Dispute Resolution (ADR)

a. Generally no ADR, except for judge-supervised settlement conferences. (In jurisdictions more focused on “rule of law” such as Sweden, Finland, Denmark)

b. Mediation widely used (Tasmania, Vermont, New Zealand) or being promoted (Indonesia, Japan, Thailand, China)

c. Restorative justice in criminal cases – cooperative sessions focused

on the harm to the victims and society rather than just penalizing the wrong-doer (New Zealand)

d. Ombudsmen are utilized in some jurisdictions (Austria, Kenya) – individuals or commissions separate from the court and the environmental agency who negotiate the interests of the public, may have standing to represent concerned parties in court, and can monitor outcomes of court orders.

VI. On Reduction of Costs

VII. On Liability for Costs of Litigation

VIII. On Case Management

1. Appointment of a court staff as “Case Manager”2. Information Technology3. Conduct of “Directions Hearing”4. Mobile Courts5. Simplified Rules of Procedure

In conclusion, the Proposed Rule is taking great strides in paving avenues for the proper disposition of environmental justice. To be sure, there are several other jurisdictions to use as guidance for the progression of our environmental law. Constitutional recognition of environmental rights has been the norm in a number of states. This is in lieu of a formal definition of what environmental law really is. Constitutional recognition of environmental rights may come in either of two forms: either as a fundamental right or as a statement of policy. South Africa, for example, has classified the right to a healthy environment as a right in the South African Constitution’s Bill of Rights.

In another example, Indian courts have offered remedies of directions, injunction, and civil and criminal damages. The power of courts is broad. For instance, they have created panels for litigation to track progress and ordered unconditional closures. The courts have required necessary measures to be taken to inform the public of dangers, and even ordered

necessary actions to have proper legislation passed to remedy the environmental harm the obstacle preventing its correction.243

For purposes of our context, the rights-based approach, in tandem with our Constitution, jurisprudence, international norms, and foreign best practices will together serve as the most comprehensive guide for our finalization of the Proposed Rule.

243 Jona Razzaque, Background Paper No. 4: Human Rights and the Environment: the national experience in South Asia and Africa, in the Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment (UNEP-OHCHR 2002).

Documents

Draft Rationale 04.10.2010_JCAB