former Commissioner on Human Rights and former Assistant Ombudsman, is a practicing lawyer and a member of Philconsa.


"It is but proper and fitting that this Court commend the unfaltering and very able assistance rendered to the accused, seen from the excellent presentation made of his case, particularly by his defense counsel, Atty. Abelardo L. Aportadera, Jr., of Davao City, who unstintedly and magnanimously contributed his legal talents and efforts in the hope that justice may ultimately prevail." X X X

Supreme Court Decision in 'People of the Philippines - versus- Lucio Lumayok' G.R. No. L-54016

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REF. NO: G.R. No. 223076,

Philippine Justice Network
12 January 2017
By: Justice Adolfo S. Azcuna

PILAR CAÑEDA BRAGA, ET AL. v. HON. JOSEPH EMILIO A. ABAYA, ET AL., G.R. No. 223076, EN BANC, September 13, 2016, BRION, J.

1. Impact Assessment and the EIS System [EIS = Environmental Impact Statement]

Environmental Impact Assessment (EIA) is the process of evaluating and predicting the likely impacts – including cumulative impacts – of an undertaking on the environment. Its goal is to prevent or mitigate potential harm to the environment and to protect the welfare of the affected community. To this end, the process requires proponents to truthfully and responsibly disclose all relevant information on the project through the EIS. This facilitates meaningful and informed public participation that ensures the project's social acceptability to the community.

The following are the key operating principles of the EIS System:

a. The EIS System is concerned primarily with assessing the direct and indirect impacts of a project on the biophysical and human environment and ensuring that these impacts are addressed by appropriate environmental protection and enhancement measures.

b. The EIS System aids proponents in incorporating environmental considerations in planning their projects as well as in determining the environment's impact on their project.

c. Project proponents are responsible for determining and disclosing all relevant information necessary for a methodical assessment of the environmental impacts of their projects;

d. The review of the EIS by EMB shall be guided by three general criteria: (1) that environmental considerations are integrated into the overall project planning, (2) that the assessment is technically sound and proposed environmental mitigation measures are effective, and (3) that, social acceptability is based on informed public participation;

e. Effective regulatory review of the EIS depends largely on timely, full, and accurate disclosure of relevant information by project proponents and other stakeholders in the EIA process;

f. The social acceptability of a project is a result of meaningful public participation, which shall be assessed as part of the Environmental Compliance Certificate (ECC) application, based on concerns related to the project's environmental impacts;

g. The timelines prescribed by this Order, within which an Environmental Compliance Certificate must be issued, or denied, apply only to processes and actions within the Environmental Management Bureau's (EMB) control and do not include actions or activities that are the responsibility of the proponent.

Projects or undertakings that pose a potential significant impact to the environment are required to undergo impact assessment in order to secure ECCs. The proponent initiates the application process by filing a comprehensive EIS with the EMB. The EIS should at least have the following:

a. EIS Executive Summary; 
b. Project Description; 
c. Matrix of the scoping agreement identifying critical issues and concerns, as validated by EMB; 
d. Baseline environmental conditions focusing on the sectors (and resources) most significantly affected by the proposed action; 
e. Impact assessment focused on significant environmental impacts (in relation to project construction/commissioning, operation and decommissioning), taking into account cumulative impacts; 
f. Environmental Risk Assessment if determined by EMB as necessary during scoping; 
g. Environmental Management Program/Plan; 
h. Supporting documents; including technical/socio-economic data used/generated; certificate of zoning viability and municipal land use plan; and proof of consultation with stakeholders;
i. Proposals for Environmental Monitoring and Guarantee Funds including justification of amount, when required; 
j. Accountability statement of EIA consultants and the project proponent; and 
k. Other clearances and documents that may be determined and agreed upon during scoping.

The EIS contains a detailed project description of the nature, configuration, the raw materials/natural resources to be used, production system, waste generation and control, timelines, and all other related activities of the proposed project. It also includes an Environmental Management Plan (EMP) detailing the proponent's preventive, mitigating, compensatory, and contingent measures to enhance the project's positive impacts and minimize ecological risks.

Projects with potentially significant negative environmental impacts are further required to conduct public consultations so that the environmental concerns of stakeholders are addressed in formulating the EMP.

The impact assessment concludes with EMB 's approval (in the form of 
an ECC) or rejection (in the form of a denial letter). The ECC signifies that the proposed project will not cause significant negative impact on the environment based on the proponent's representation. It also certifies that the proponent has complied with the EIS System and has committed to implement its approved EMP. Accordingly, the ECC contains the specific measures and conditions that the proponent must undertake to mitigate the identified environmental impacts.

2. The duty to comply with the EIS System rests on the proponent.

The Sasa Wharf Modernization Project has the potential to significantly 
affect the quality of the environment, putting it within the purview of the EIS 
System. However, (1) who is responsible for preparing and filing the EIS and (2) when does this duty arise?

P.D. 1151 and P.D. 1586 requires all agencies and instrumentalities of the national government, including GOCCs, and private corporations, firms, and entities to file the EIS for every proposed project or undertaking that significantly affects the quality of the environment.

x x x

These provisions demonstrate the expansive scope of the EIS System. Unfortunately, they are also ambiguous when it comes to identifying with particularity the responsible party in multilateral and collaborative projects.

The IRR of the EIS System simply designates the responsible party as the proponent. Ordinarily, the proponent is easy to identify – it is the natural or juridical person intending to implement the project. But who are the proponents in PPP Projects which are a collaborative effort between the government and the private sector?

Republic Act No. 6957 as amended by R.A. 7718, commonly known as the Build-Operate-Transfer (BOT) Law, identifies the proponent in a PPP project as "the private sector entity which shall have contractual responsibility for the project." Accordingly, there is yet no project proponent responsible for the EIS and the ECC until the bidding process has concluded and the contract has been awarded.

Considering that the Project is still in the bidding stage, the petition for continuing mandamus to compel the respondents to submit an EIS and secure an ECC is premature. It is also misplaced because the public respondents DO NOT have the duty to submit the EIS or secure an ECC.

3. The LGC requires the lead agency to conduct local consultation and secure the approval of the concerned sanggunian prior to the implementation of the project.

The issuance of the ECC does not exempt the project from compliance with other relevant laws. The LGC, in particular, requires the government agency authorizing the project to conduct local consultation and secure prior consent for ecologically impactful projects:

x x x

The duty to consult the concerned local government units and the stakeholders belongs to the national government agency or GOCC authorizing or involved in the planning and implementation of the project – not the private sector proponent. In this case, this refers to the DOTC.

The LGC does not prohibit the agency from acting through a medium such as the project proponent. In fact, the required consultation under the LGC may overlap with the consultation prescribed under the EIS System. Both are intended to measure a project's social acceptability and secure the 
community's approval before the project's implementation.

However, the agency is responsible for ensuring that: (1) the concerned LGUs and stakeholders have been thoroughly and truthfully informed of the objectives of the program and its ecological impact on the community; so that (2) the community, through their sanggunian, can intelligently give their approval to socially acceptable projects and reject the 
unacceptable ones. These requirements must be complied with before the project is implemented.

4. But when does implementation begin?

The BOT Law defines the proponent as the private sector entity with the contractual responsibility over the project. The contract to a project is executed between the concerned agency and the winning bidder within seven (7) days from the latter's receipt of the notice from the agency that all conditions stated in the Notice of Award have been complied with.

Upon the signing of the contract, the winning bidder becomes the project proponent. Within another 7 days from the date of approval or signing of the contract by the head of the Agency, the agency will issue a "Notice to Commence Implementation" to the proponent. Interestingly enough, even this does not signal the start of the implementation stage.

Upon receipt of the Notice, the proponent is required to prepare detailed engineering designs and plans based on the prescribed minimum design and performance standards and specifications in the bid/tender documents. The agency shall review the detailed engineering designs in terms of its compliance with the prescribed standards and specifications. If the designs are found acceptable, the agency shall approve them for incorporation in the contract to be signed by the proponent and the agency.

The proponent shall construct the project based on the design and performance standards and specifications in the detailed engineering design. The signing of the finalized contract incorporating the detailed engineering design is the reckoning point when implementation can begin. This is the start of the Construction Stage.

5. The petition does not warrant a writ of Kalikasan. 
x x x
First, the petition failed to identify the particular threats from the Project itself. All it does is cite the negative impacts of operating a port inside a city based on the Synthesis Report. However, these impacts already exist because the Port of Davao has been operating since 1900. The Project is not for the creation of a new port but the modernization of an existing one. At best, the allegations in support of the application for the writ of kalikasan are hazy and speculative.

Second, the joint publication is titled Managing Impacts of Development in the Coastal Zone for a reason; it identifies the potential environmental impacts and proposes mitigation measures to protect the environment. The petition is misleading because it only identified the risks but neglected to mention the existence and availability of mitigating measures.

Moreover, this Court does not have the technical competence to assess the Project, identify the environmental threats, and weigh the sufficiency or insufficiency of any proposed mitigation measures. This specialized competence is lodged in the DENR, who acts through the EMB in the EIA process. As we have already established, the application of the EIS System is premature until a proponent is selected.

Further, we fail to see an environmental risk that threatens to prejudice the inhabitants of two or more cities or municipalities if we do not restrain the conduct of the bidding process. The bidding process is not equivalent to the implementation of the project. The bidding process itself cannot conceivably cause any environmental damage.

Finally, it is premature to conclude that the respondents violated the conditions of Resolution No. 118 issued by the Regional Development Council of Region Xl. Notably, the Resolution requires compliance before the implementation of the project. Again, the project has not yet reached the implementation stage.

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