To Conserve and to Protect:

Observations and Insights on the Writ of Kalikasan in the Philippines

and the Judicial Application of the Precautionary Principle in Brazil

in partial fulfillment of the requirements in

PA 327 Comparative Development Administration

Dr. Eduardo Gonzalez

Professor

Sharon Millan
DPA Student

1st June 2015

Table of Contents
Introduction............................................................................................................................................................ 2
Concept of Ecological Justice.................................................................................................................... 2
Towards Environmental and Ecological Justice...................................................................................... 4
The Proper Function of a Writ of Kalikasan..................................................................................................... 6
Key Developments - Post Writ of Kalikasan.......................................................................................... 19
Nature and functions of writs....................................................................................................................22
Writ of Kalikasan against GMO Bt Talong...................................................................................................... 23
Background of Bt Talong........................................................................................................................... 24
Judicial Application of the Precautionary Principle in Brazil........................................................................25
The Brazilian GMO Case.......................................................................................................................... 25
Overview of the Brazilian GMO Case..................................................................................................... 26
District Court Decision: The Precautionary Principle Requires an EIA.............................................29
Appellate Court Decision: CTNBio Satisfied the Precautionary Principle........................................ 30
Comparing the Philippine Bt Talong Case and the Brazilian RR Soybean Case....................................32
The Parties.................................................................................................................................................. 32
The Petition................................................................................................................................................. 33
Venue........................................................................................................................................................... 33
Court Action................................................................................................................................................. 33
Legal Basis for the decisions....................................................................................................................34
A Hard Look at the Philippine GMO case.............................................................................................. 35
A Hard Look at the Brazilian GMO case................................................................................................ 37
Recent Developments............................................................................................................................... 40
Judicial Review for the Precautionary Principle............................................................................................ 41
Judicial Power.............................................................................................................................................41
Rule-Making Power of the Supreme Court............................................................................................ 43
Judicial Activism..........................................................................................................................................43
Judicial Legislation..................................................................................................................................... 44
Implications to Sustainable Development...................................................................................................... 44
Agricultural transformation and rural development...............................................................................45
Improving small scale agriculture............................................................................................................ 47
The Environment and Development....................................................................................................... 47
Sustainable development and environment accounting......................................................................48
The Precautionary Principle..................................................................................................................... 48
Red Flags.....................................................................................................................................................53
Contitutionalism and Mimicry................................................................................................................... 58
Conclusion........................................................................................................................................................... 61

Lawyers and Judges should not limit their activities to the peculiar problems on
the administration of justice...they should have a well-rounded view of the
conditions and policies prevailing in our society...and lead...in the effort to find
solutions for the multifarious problems that affect the nation.
- Justice JBL Reyes

Introduction
Consequences of technological developments have raised concerns over the protection
against systemic risks. The necessity of State intervention ensures this protection.
However, it does not follow that this protection can always be provided by the State for
one reason or another. Intervention then comes from another key player, the Judiciary.
The Judiciary is privileged to define rights and protects these rights from systemic risks.
When invoked, the Judiciary ultimately defines what rights need protection. Given the
recent imminent threats to the environment, the Judiciary has recognized that has to take
a more active role, in stark contrast to its default passive mode. As such, in giving
premium to the right to a Balanced and Healthful Ecology, does the environmental and
ecological rights-based framework of the Supreme Court encroach upon the political and
economic jurisdiction of the Government Regulatory Bodies as well as the Market itself?

Concept of Ecological Justice

Contemporary developments in the theory of justice have come up with the concept of
ecological justice. This has evolved not only from the fact of maldistribution of
environmental goods. Environmental activists have now drawn a distinction between
environmental justice and ecological justice, the former being seen to neglect the natural
world outside human impacts. It has been felt that the meaning of environment has been
too narrowly drawn and that the concept of justice has been based on the universalist,
singular theory of justice based on the distributional model. In other words, most concepts
of environmental justice do not address the issue of doing justice on nature. (Schlosberg,
2007)

The extension of the idea of justice to the nonhuman world has now become part of the
worldwide movement for ecological justice. Ecological justice is simply defined as justice
to nature, that is, justice to include the nonhuman natural world - individual animals,
communities, flora, fauna, and the whole of nature. (David Schlosberg. Defining
Environmental Justice: Theories, movements and nature. Ch. One (2007). David
Schlosberg, an American environmental theorist, would start by recognizing nature as
part of our shared community, and include humans and the rest of the natural world in an
expanded community of justice. The modern day theorists in the West and in the East
have been able to articulate this in terms of ecological justice; every natural entity is
entitled to enjoy the fulness of its own form of life. Nature must have an opportunity to
survive, with ts integrity intact, in the environment of diversity and autonomy that is
characteristic of the biosphere. (Schlosberg, 2007)The recognition of nature can come
out of a more human-centered concern of integrity, this concern for integrity, meaning an
integrated, undivided whole, begins with an interest in the integrity of ourselves as
organisms, and expands to psychological, cognitive, and moral integrity, and provides
reason to respect nonhuman beings and their environments. We are part of nature, and it
is part of our human interest to integrate ecological concerns. (Schlosberg 2007) It has
been observed that the lack of recognition of nature, the exclusion of nature from theories
of justice, and the dismissal of parity nature have led modernity to a crisis of sustainability.
Modernitys social bond, according to recent theorists, is unsustainable without a
simultaneous recognition of, and bond with, the rest of the natural world. (Schlosberg,
2007)
Today, the Philippines has enacted laws that not only protect the environment but also
laws to maintain ecological balance. Our Constitution mandates the State to:protect and
advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature. (Art. II, sec. 16, Philippine Constitution.)

Towards Environmental and Ecological Justice

Among the principles on the Role of Law and Sustainable Development adopted at the
Global Judges symposium held in Johannesburg, South Africa on August 20, 2002, is that
an independent judiciary and judicial process is vital for implementation, development
and enforcement of environmental law, and that members of the Judiciary, as well as
those contributing to the judicial process at the national, regional and global levels are
crucial partners for promoting compliance with, and the implementation of international
and national environmental justice (Johannesburg Principles, par. 5)
On July 5-6, 2007, The Philippines participated in the Asian Justices Forum on the
Environment - Sharing Experience to Strengthen Environmental Adjudication in Asia
which was held at Mandaluyong City, with former Chief Justice Reynato S. Puno as
keynote speaker. Later, the Supreme Court en banc passed a resolution, A.M. No.
07-11-12SC dated November 20, 2007:
1. designating 117 environmental courts; 45 forestry courts from the 101 courts so
designated under administrative order no. 150-593, July 26, 1995; 48 1st level
courts and 24 2nd level trial courts, to handle all tyoes of environmental cases,
including violations of the Fisheries Code (RA 8550) and violations of the NIPAS
Act (RA 7586), among others, except those cases within the jurisdiction of
quasi-judicial bodies;
2. Considering all single sala 1st and 2nd level courts as special courts to hear and
decide environmental cases, in addition to their regular duties;
3. Raffling all appealed environmental cases in the Court of Appeals court-wide; and
Conducting capacity building programs for the personnel of the aforesaid
environmental courts and the appellate courts after formal designation of said
courts.
Pursuant to this, the PhilJA proceeded with the training of judges using the Academys
publications, namely, Greening the Judiciary; Learning Modules on the Environment
(2005) and Environmental Law Training Manual (2006) which was published with the
assistance of leading environmentalists (Feliciano, 2010)
4

Ensuring that the third-generation human rights are upheld, the Supreme Court held a
Forum on Environmental Justice: Upholding the Right to a Healthful and Balanced
Ecology on April 16-17, 2009, simultaneously in Baguio, Iloilo and Davao Cities. The
Forum led to the signing of Multi-sectoral Memorandum of Agreement to further
strengthen and implements of the countrys environmental laws. It also resulted in
valuable inputs on the Draft Rule of Procedure for Environmental Cases, which reflects
concerns and recommendations of all stakeholders and covers all stages of litigation. (10
Bench Mark 1, March 2009)
Also known as the Green Rules, these Rules of Procedure for Environmental Cases were
written for the purpose of removing three main roadblocks in environmental litigation. The
first roadblock is the ability of individuals and groups to commence environmental
litigation. This goes into the locus standi issue in environmental cases. This also goes into
the challenges faced by the poor and marginalized groups to commence and sustain
environmental litigation. The second roadblock is the inherent delays in the judicial
process. While due process must be protected, technicalities have been known to make
remedies useless because of the time it takes for the judicial process to move forward.
The third roadblock is the difficulty in applying traditional rules on obtaining, storing and
presenting evidence for environmental cases. The quantum and nature of evidence
required for proving causality through traditional means may prove to be too daunting for
victims of environmental degradation. Thus, the Green Rules intend to make the judicial process
a partner in obtaining environmental justice. (Casis. 2012)

The Proper Function of a Writ of Kalikasan

On April 13, 2010, the Supreme Court en banc approved a worlds first: the Rules of
Procedures for Environmental Cases (A.M. 09-6-8-SC) effective April 29, 2010. The
Rules govern the procedure in civil, criminal and special civil actions before the Regional
Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules and regulations. (A.M. 09-6-8-SC dated April
29, 2010)
The Objectives of the Rules are for a Balanced and Healthful Ecology, Simplified, Speedy
and Inexpensive Procedure Best Practices Compliance with Judicial Orders. (A.M.
09-6-8-SC dated April 29, 2010)
According to A.M. 09-6-8-SC dated April 29, 2010, the salient features of the Rules are:
A. The Scope
Rule 1, Section 2 of the Green Rules provides:
SEC. 2. Scope.These Rules shall govern the procedure in civil, criminal and special
civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving
enforcement or violations of environmental and other related laws, rules and regulations
such as but not limited to the following:

The Green Rules apply to all actions involving enforcement or violations of environmental
and other related laws, rules and regulations. It should be noted that the laws listed under
Section 2 are more than those listed under SC Administrative Circular No. 23-2008.9
But because both lists are not intended to be exhaustive, then there is no expansion of
coverage because of the Green Rules. (Casis, 2012)

B. The Objectives
Rule 1 Section 3 provides:
SEC. 3. Objectives.The objectives of these Rules are:
(a)

To protect and advance the constitutional right of the people to a balanced and

healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for the enforcement of
environmental rights and duties recognized under the Constitution, existing laws, rules
and regulations, and international agreements;
(c)

To introduce and adopt innovations and best practices ensuring the effective

enforcement of remedies and redress for violation of environmental laws; and

(d) To enable the courts to monitor and exact compliance with orders and judgments in
environmental cases.
It can be said that the foundation of the Green Rules is the constitutional right of the
people to a balanced and healthful ecology. Therefore, the Green Rules do not purport to
protect nature for its inherent value but because of its value to human beings. (Casis,
2012)
The second and third objectives justify the bulk of the provisions of the Green Rules.
Many of the provisions are intended to speed up the conclusion of environmental cases or
provide immediate remedies. For instance, Rule 2, Sections 1 and 2 identify the
pleadings and motions allowed as well as prohibited pleadings and motions as follows
(Casis, 2012):
SEC. 1. Pleadings and motions allowed.The pleadings and motions that may be filed
are complaint, answer which may include compulsory counterclaim and cross-claim,
motion for intervention, motion for discovery and motion for reconsideration of the
judgment.
Motion for postponement, motion for new trial and petition for relief from judgment shall be
allowed in highly meritorious cases or to prevent a manifest miscarriage of justice.

SEC. 2. Prohibited pleadings or motions.The following pleadings or motions shall not

be allowed:
(a)

Motion to dismiss the complaint;

(b)

Motion for a bill of particulars;

(c) Motion for extension of time to file pleadings, except to file answer, the extension not to
exceed fifteen (15) days;
(d)

Motion to declare the defendant in default;

(e) Reply and rejoinder; and

(f) Third party complaint.
Section 1 is said to be an exhaustive list.

If so, then Section 2 is redundant because

everything not in Section 1 is deemed prohibited and there is no need for a separate
listing for prohibited pleadings. Perhaps Section 2 is merely intended to reiterate the
prohibited pleadings and motions. (Casis, 2012)
The other provisions, which are intended to expedite the process, are the provisions on:
1. continuous trial;
2. affidavits in lieu of direct examination;
3. one day examination of witness rule;
4. 60-day period for decision;
5. one-year period for trial.(Casis, 2012)

As to providing an inexpensive procedure, Rule 2, Section 12 provides:

SEC. 12. Payment of filing and other legal fees.The payment of filing and other legal
fees by the plaintiff shall be deferred until after judgment unless the plaintiff is allowed to
litigate as an indigent. It shall constitute a first lien on the judgment award. For a citizen
suit, the court shall defer the payment of filing and other legal fees that shall serve as first
lien on the judgment award. Thus, the payment of filing fees is deferred. But if the litigant
is an indigent he is exempted altogether. (Casis, 2012)

As to the fourth objective, it can be noted that even without the Green Rules the Supreme
Court has exercised a similar power in the Manila Bay case. The value of these objectives
is that they may aid in the interpretation of the Green Rules in case there is a dispute as to
how a particular rule is to be applied. (Casis, 2012)
C. The Consent Decree
Rule 1, Section 4 (b) defines a consent decree as a judicially- approved settlement
between concerned parties based on public interest and public policy to protect and
preserve the environment.
The term is not entirely absent from Philippine jurisprudence. It appears that there are
four Philippine cases that refer to a consent decree. Of these, one in particular, the Court
impliedly defined a consent decree as an agreement or stipulation made by the parties to
a case which has been put in the form of a judgment, in an effort to give it the force and
effect of a judgment. None of these cases however discuss the concept in depth. As far as
Philippine laws are concerned, there appears to be no mention of the concept in our
statute books.(Casis, 2012)
In the Green Rules, a consent decree is a means to expedite environmental litigation.
Rule 3, Section 5 provides:
SEC. 5. Pre-trial conference; consent decree.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 judge may issue a consent decree approving the agreement between the
partiesin accordance with law, morals, public order and public policy to protect the right of
the people to a balanced and healthful ecology (emphasis supplied)
D. The Continuing Mandamus
Rule 1, Section 4 (c) defines a continuing mandamus as a writ issued by a court in an
environmental case directing any agency or instrumentality of the government or officer
thereof to perform an act or series of acts decreed by final judgment which shall remain
effective until judgment is fully satisfied.
9

A continuing mandamus was first used by the Court in the Metro Manila Development
Authority v. Concerned Residents of Manila Bay where the Court held that 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 this
case, the Court ordered: The heads of petitioners-agencies MMDA, DENR, DepEd, DOH,
DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA,
in line with the principle of continuing mandamus, shall, from finality of this Decision,
each submit to the Court a quarterly progressive report of the activities undertaken in
accordance with this Decision. (Casis, 2012)
I. Grounds for the Petition
Rule 8, Section 1 provides:
SEC. 1. Petition for continuing mandamus.When any agency or instrumentality of the
government or officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying that the petition concerns an
environmental law, rule or regulation, and praying that judgment be rendered
commanding the respondent to do an act or series of acts until the judgment is fully
satisfied, and to pay damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law, rules or regulations. The
petition shall also contain a sworn certification of non-forum shopping.
Thus the requisites are:
a. When an agency or instrumentality of the government or officer thereof:
i.

unlawfully neglects the performance of an act which the law specifically enjoins as a

duty resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein; or
10

ii. unlawfully excludes another from the use or enjoyment of such right; and
b. There is no other plain, speedy and adequate remedy in the ordinary course of law.
2. Filing the Petition
The petition may be filed in any of the following:
a. Regional Trial Court exercising jurisdiction over the territory where the actionable
neglect or omission occurred; or
b. Court of Appeals;or
c. Supreme Court.
The petitioner is exempt from filing docket fees.
3. Proceedings
Upon receipt of a petition sufficient in form and in substance, the court shall issue the writ
and require the respondent to comment on the petition within 10 days from receipt of a
copy thereof. Upon receipt of the comment or the expiration of the time for the filing the
same, the court may hear the case which shall be summary in nature or require the
parties to submit memoranda. The court has 60 days to issue a decision from the date of
the submission of the petition for resolution.

4. Judgment
The remedies that the court may grant include:
a. the privilege of the writ of continuing mandamus requiring respondent to perform an act
or series of acts until the judgment is fully satisfied; and
b. such other reliefs as may be warranted resulting from the wrongful or illegal acts of the
respondent.
In any case, the court shall require the respondent to submit periodic reports detailing the
progress and execution of the judgment, and the court may, by itself or through a
commissioner or the appropriate government agency, evaluate and monitor compliance.

11

E. The Environmental Protection Order

Rule 1, Section 4 (d) of the Green Rules defines an environmental protection order
(hereinafter EPO) as 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. The idea behind the EPO was to provide for a
remedy similar to the protection orders under the Anti-Violence Against Women and Their
Children Act of 2004. (Casis, 2012)
Rule 2, Section 8 provides:
SEC.8. Issuance of Temporary Environmental Protection Order (TEPO).If it appears
from the verified complaint with a prayer for the issuance of an Environmental Protection
Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of the multiple-sala court before raffle
or the presiding judge of a single-sala court as the case may be, may issue ex parte a
TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by
the party or person enjoined. Within said period, the court where the case is assigned,
shall conduct a summary hearing to determine whether the TEPO may be extended until
the termination of the case.
The court where the case is assigned, shall periodically monitor the existence of acts that
are the subject matter of the TEPO even if issued by the executive judge, and may lift the
same at any time as circumstances may warrant.
The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.
The court in civil or criminal case covered by the Green Rules may issue a TEPO effective
for 72 hours on the ground that the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury. The TEPO may be extended by the Court until
the termination of the case. However, the TEPO may be dissolved if it appears after
hearing that its issuance or continuance would cause irreparable damage to the party or
person enjoined while the applicant may be fully compensated for such damages as he
may suffer and subject to the posting of a sufficient bond by the party or person enjoined.

12

Therefore, it is not sufficient for the person enjoined to simply allege damage. He must
prove that such damage is irreparable and the nature of the damage suffered or to be
suffered by applicant is of a nature that can be compensated monetarily. (Casis, 2012)
F. The SLAPP
Rule 1, Section 4 (g) of the Green Rules defines SLAPP as follows:
(g) Strategic lawsuit against public participation(SLAPP)refers to an action whether civil,
criminal or administrative, brought against any person, institution or any government
agency or local government unit or its officials and employees, with the intent to harass,
vex, exert undue pressure or stifle any legal recourse that such person, institution or
government agency has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights.

The civil and criminal procedure portions of the Green Rules each have their own SLAPP
provisions.
In the Civil Procedure portion, a SLAPP is re-defined as follows:
SEC. 1. Strategic lawsuit against public participation (SLAPP).A legal action filed to
harass, vex, exert undue pressure or stifle any legal recourse that any person, institution
or the government has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights shall be treated as a
SLAPP and shall be governed by these Rules.
To illustrate, a corporation, which has been charged for violating an environmental law,
may file a suit for damages against the person who filed the case against it. In that civil
suit for damages, the defendant may raise the defense that the action filed against him is
a SLAPP and should be governed by the Green Rules. The defendant may do so by filing
an answer interposing as a defense that the case is a SLAPP. Documents, affidavits,
papers and other evidence must support this defense. Thereafter, the court in that case
will direct the other party to file an opposition showing the suit is not a SLAPP. Such
opposition must include the evidence in support of its allegations and must be filed within

13

a non-extendible period of five (5) days from receipt of notice that an answer has been
filed. (Casis, 2012)
The court will then set a hearing within fifteen (15) days from filing of the comment or the
lapse of the period. The hearing will be summary in nature. The party alleging that the civil
suit is a SLAPP must prove by substantial evidence that his environmental action is
legitimate action while the other party must prove by preponderance of evidence the civil
suit is not a SLAPP. The court has 30 days from the date of the hearing to resolve the
SLAPP defense. (Casis, 2012)
In case a criminal action is filed against the person filing an environmental case, the
accused may file a motion to dismiss on the ground that the criminal action is a SLAPP.
The summary nature of the hearing and quantum of evidence required of each party
follows that of civil suits. The only difference is that the person filing the criminal action is
not require to file an opposition and no time frame is given for setting the hearing or the
resolution of the defense. (Casis, 2012)
The idea behind these provisions is to protect individuals and groups who have filed or
intend to file actions to protect the environment. SLAPP suits are meritless suits aimed at
silencing a plaintiffs opponents, or at least at diverting their resources. Therefore, they
are mere harassment suits. However, what distinguishes SLAPP from other harassment
suits is that they may have a political dimension in the sense that citizen participation is
affected, or the right to petition the government for redress of grievances is restrained.
(Casis, 2012)
G. The Writ of Kalikasan
When the first complete draft of the Green Rules was nearing completion, the idea was
presented to include the rules own version of the writ of amparo. There was some debate
on the name to be given to the writ, but the TWG finally settled on the current name, writ of
kalikasan. (Casis, 2012)

14

1. To Whom Available
Rule 7, Section of the Green Rules provides:
SEC. 1. Nature of the writ.The writ is a remedy available to a natural or juridical person,
entity authorized by law, peoples organization, non-governmental organization, or any
public interest group accredited by or registered with any government agency, on behalf
of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or
private individual or entity, involving environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.
Thus, the writ is available to any natural or juridical person, entity authorized by law,
peoples organization, non-governmental organization, or any public interest group
accredited by or registered with any government agency, on behalf of other persons.
(Casis, 2012)
2. When Available
The persons represented must have their right to a balanced and healthful ecology
violated, or threatened with violation by an unlawful act or omission of a public official or
employee, or private individual or entity. Such violation must involve environmental
damage of such magnitude as to prejudice the life, health or property of inhabitants in two
or more cities or provinces. (Casis, 2012)
3. Filing the Writ
Rule 7, Sections 3 and 4 provide:
SEC. 3. Where to file.The petition shall be filed with the Supreme Court or with any of
the stations of the Court of Appeals.
SEC. 4. No docket fees.The petitioner shall be exempt from the payment of docket
fees.
The writ may only be filed with the Court of Appeals or Supreme Court. There are no
docket fees paid.
Writ of Kalikasan and Continuing Mandamus

15

The table below highlights the differences between the writ of kalikasan and the
continuing mandamus: (Casis, 2012 citing the GREEN RULE BOOK)
KALIKASAN

CONTINUING MANDAMUS

Natural or juridical person, entity

authorized
Who

by

may organization,

file

law,

peoples

non-governmental

organization, or any public interest

Person aggrieved

group accredited by or registered

with any government agency

Unlawful neglect in the

performance of an act
which the law specifically
enjoins as a duty resulting

Constitutional
balanced
ecology

When
available

right

and
is

to

from an office, trust or

healthful

station in connection with

violated,

or

the

enforcement

or

threatened with violation by

violation

an unlawful act or omission;

environmental law rule or

Involving

regulation

environmental

of
or

right

damage of such magnitude as

therein,

to prejudice the life, health or

exclusion of another from

property of inhabitants in two

the use or enjoyment of

or more cities or provinces.

such right; and

or

an

unlawful

There is no other plain,

speedy

and

adequate

remedy in the ordinary

course of law,
Against

Public official or employee, or private Agency or instrumentality of the

16

whom

individual or entity

government or officer thereof

Regional Trial Court exercising
jurisdiction over the territory

Where

to Supreme Court or with any of the where the actionable neglect or

file

stations of the Court of Appeals

omission occurred or with the

Court of Appeals or the Supreme
Court

Discovery

Ocular inspection; Production and

Measures

inspection of documents and things

Direct

respondent

permanently

cease

None

to
and

permanently cease and desist

from

committing

acts

or

neglecting the performance of

a

duty

in

violation

of

environmental laws resulting

in environmental destruction
or damage;
Relief(s)

available

Direct the respondent public

official, government agency,
private person or entity to
protect, preserve, rehabilitate
or restore the environment;

Direct the respondent public

Judgment

commanding

the

respondent to do an act or series

of acts until the judgment is fully
satisfied, and to pay damages
sustained by the petitioner by
reason of the malicious neglect
to perform the duties of the
respondent, under the law, rules
or regulations.

official, government agency,

private person or entity to
monitor strict compliance with
the decision and orders of the
court;
17

Direct the respondent public

official, government agency,
or private person or entity to
make periodic reports on the
execution

of

the

final

judgment; and

Such other reliefs which relate

to the right of the people to a
balanced

and

healthful

ecology or to the protection,

preservation, rehabilitation or
restoration
environment,
award

of

of

the

except

the

damages

to

individual petitioners.
14 Possible Defenses: (Salazar, R.)
1. no environmental damage
2. no environmental damage caused by respondent
3. environmental damage caused by another
4. not environmental case
5. not violate environmental law
6. not prejudice life, health or property of inhabitants
7. not affect 2 or more cities or provinces
8. no evidence
9. no causal link between act and damage
10. there is plain, speedy and adequate remedy - exhaustion of administrative
remedies
11. compliance with all laws and regulations
12. Compliance with all ECC conditions
13. case amounts to SLAPP
14. Constitutional issues against the rules
18

Key Developments - Post Writ of Kalikasan

The extraordinary writ of Kalikasan, as defined by the Rules of Court, is a remedy
available to a natural or juridical person, entity authorized by law, peoples organization,
non-governmental organization, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by an unlawful act
or omission of a public official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. Being an extraordinary remedy, the
underlying emphasis in the writ of kalikasan is of great magnitude as it deals with damage
that transcends political and territorial boundaries. (Peralta, 2013)
The case of West Tower Condominium Corp., et al. v. First Philippine Industrial Corp., et
al. is worthy of note, In November 2010, four months after an oil leak was discovered in
the basement of a condominium, the high tribunal issued the countrys first Writ of
kalikasan, leading to the temporary closure of the FPIC pipeline which transports fuel
products from one of the provinces to an oil depot in Manila in the meantime that the Court
of Appeals was hearing the Petition. (Peralta, 2013)
In Cosalan, et al v. City of Baguio, et al., petitioner therein sought the closure of a
dumpsite following the death of six (6) people, including three (3) children, when a
trashslide buried them alive under a mountain of trash. After hearing with the Court of
Appeals, the parties and the local government agreed to settle the case amicably and
later entered into a Consent Decree, wherein the local government undertook, among
other things, to permanently close the dumpsite and convert the area to an
environment-friendly Eco-Park. A writ of Kalikasan was thus granted and a writ of
Continuing Mandamus was issued ordering the Department of Environment and Natural
Resources (DENR) to strictly monitor compliance of all concerned to the said decree.

19

Greenpeace Southeast Asia (Philippines), et al. v. environmental Management Bureau of

the Department of Environment and Natural Resources, CA-G.R. SP No. 00013, May 17,
2013, p. 16. 8 G.R. No. 194239. 9 CA-G.R. SP No. 00006. 5 In Agham Party List, et al. v.
Ramon Paje, 10 petitioners questioned the use of and management of the Taal Volcano
Protected Landscape (TVPL). Considering that numerous fish cages were erected and
several livestock operators lined the banks of the Taal Lake, it was claimed that the
mishandling of these enterprises affected the water quality and health of the Taal Lake.
The parties therein entered into a Memorandum of Agreement, which was approved by
the Court of Appeals. Among other things, the Protected Area Management Board of the
Taal Volcano Protected Landscape undertook to be strict in the issuance of appropriate
clearances to all projects in the Taal Volcano Protected Landscape. The Department of
Environment and Natural Resources (DENR) also agreed to intensify its efforts in
monitoring the livestock density of fish cages in the area. A writ of Continuing Mandamus
was also issued requiring the parties to faithfully and promptly comply with the conditions
of the Memorandum of Agreement, as well as, to submit a quarterly progressive report.
(Peralta, 2013)
Another important innovation is the Application of the Precautionary Principle. The
formulation of evidence-related provisions was made with the guidance of the
precautionary principle in order to facilitate access to courts in environmental cases and
create a more relevant form of court procedure tailored to the unique and complex
characteristics of environmental science. The precautionary principle was recently
applied by the Court of Appeals in the case of Greenpeace Southeast Asia (Philippines),
et al. v. Environmental Management Bureau of the Department of Environment and
Natural Resources. The Court of Appeals therein granted a petition filed by environmental
organizations and advocates to stop the nationwide field trials of genetically modified
eggplant. The Court of Appeals stated that the precautionary principle is especially
relevant since the controversy deals with a genetically-modified organism that would be
introduced into our ecosystem and eventually to the Philippine market for human
consumption. In the end, the CA upheld the petitioners right to a balanced and healthful
ecology and opined that the field trials cannot be declared as safe to human health and
20

the environment since the over-all safety guarantee of the project remains to be unknown.
(Peralta, 2013)
The Rule on Strategic Lawsuit Against Public Participation or SLAPP is likewise a new
legal principle. Borrowed from U.S. state laws, this concept protects persons from
frivolous and vexatious lawsuits meant to stifle their efforts to enforce environmental
rights. Once proven that a case filed against any person, institution or the government
was only meant to harass, vex, exert undue pressure or stifle any legal recourse taken or
may take in the enforcement of environmental laws, protection of the environment or
assertion of environmental rights, the court shall dismiss the action and may award
damages, attorneys fees and cost of suit to the defendant. (Peralta, 2013)
In fine, the Rules recognize that formidable challenges may be mounted against those
who seek to enforce environmental laws or to assert environmental rights. Since its
effectivity, the Rules of Procedure have been widely used by environmental groups and
individuals in protecting the environment and in asserting their environmental rights.
Latest data of the Supreme Court shows that 24 Writ of Kalikasan petitions have been
filed before the Court involving a wide range of cases, including the above-mentioned
cases. Being priority cases, these petitions are tackled by the Court En Banc. After finding
sufficient basis, the Court issues the writ prayed for and refers the case to the Court of
Appeals for hearing. (Peralta, 2013)
As of last week, the data shows that one (1) petition has already been denied; one (1) was
remanded; two (2) were dismissed; fourteen (14) were referred to the Court of Appeals;
and six (6) are pending before the High Court. As for the Court of Appeals, the appellate
Court has already decided and resolved five (5) of the cases that were referred to it.
Recently, a petition for a writ of Kalikasan was filed before the Supreme Court of the
Philippines relative to the grounding in the Tubbataha Reef last January 17, 2013 of USS
Guardian, an Avenger-class mine countermeasures ship of the United States Navy. The
case was filed three months after the ship ran aground in the protected area which is a
UNESCO World Heritage Site. Among the respondents in the said petition are officials of
the US Navy. Although the ship has already been removed, it is estimated that thousands
21

of square meters of coral reef have been damaged by the US warship. To date, this is the
first instance that foreign troops have been impleaded as respondents in a Writ of
Kalikasan petition. (Peralta, 2013)

Nature and functions of writs

In general, a writ is defined as a courts written order, in the name of a state or other
competent legal authority, commanding the addressee to do or refrain from doing some
specified act. (Tolentino, 2010 citing Garner)
The Philippines has several major writs - habeas corpus, Amparo, habeas data, certiorari,
mandamus, injunction and the most recent kaikasan.

Writs of habeas corpus and

Amparo deals with extrajudicial and forced disappearances. Writ of habeas data deals
with access to information. Certiorari seeks to annul, mandamus seeks to mandate and
injunction seeks to prevent. Common to these writs is the lack of speedy, adequate,
available remedy at law. They may be invoked only in cases where great and irreparable
injury to the plaintiff is sought to be avoided. (Tolentino, 2010)

22

Writ of Kalikasan against GMO Bt Talong

The University of the Philippines Los Baos (UPLB), through the Institute of Plant
Breeding (IPB), had been conducting field trials of Bt talong from 2010-2012. In April
2012, a petition was made to the Philippine Supreme Court which sought a Temporary
Environmental Protection Order (TEPO), and the issuance of a Writ of Kalikasan and a
Writ of Continuing Mandamus to stop the field trials of Bt eggplant. Petitioners were
Greenpeace - Southeast Asia along with Magsasaka at Siyentipiko para sa Pag-unlad ng
Agrikultura (MASIPAG), Sibol ng Agham at Teknolohiya (SIBAT), Philippine Misereor
Partnership Inc., Pilipina Pilipina, Consumer Rights for Safe Food, Miriam Peace,
Sarilaya, Lingkod Tao Kalikasan, SEARICE, NO2GMOs Philippines, NASSA, and TFIP.
Named respondents were the University of the Philippines Los Baos Foundation Inc.
(UPLB-FI), Environmental Management Bureau of Department of Environment and
Natural Resources (EMB-DENR), Fertilizer and Pesticide Authority-Bureau of Plant
Industry (FPA-BPI), UP Mindanao Foundation Inc., and the International Service for the
Acquisition of Agri-biotech Applications-Southeast Asia Center (ISAAA). In May 2012, the
Supreme Court decided to grant a Writ of Kalikasan in favor of the petition and remanded
the case to the Court of Appeals for reception of evidence, hearings, and decision. The
Supreme Court however did not grant a TEPO. UP Los Baos was subsequently added
as respondent to the case. Respondents petitioned the Court of Appeals asking for the
case to be dismissed, one of the grounds being that it is already moot and academic
since the trials had been completed/terminated. The respondents' petitions were denied
and the case went to trial. (UP LABS, 2013)
In May 2013, the Special 13th Division of the Court of Appeals in Manila, the Philippines,
issued a ruling to grant the Writ of Kalikasan, a legal remedy designed for the protection of
one's constitutional right to a healthy environment, and ordered respondents to
permanently stop further confined field trials of Bt talong because these allegedly pose
risks to human health and the environment. The CA found that precautionary principle
was relevant and used it as the reference to give a final decision to the case. The CA also
saw that there was a lack of safety net on the biosafety guidelines used for risk
23

management of the Bt talong project to ensure the safety of the people, and safety of the
environment against uncertain risk hazards. They argued that aside from Executive and
Administrative Orders, no public policies and laws of the land regarding the regulation
guidelines have been passed in the Peoples Congress. (UP LABS, 2013)

Background of Bt Talong
Bacillus thuringensis (Bt) talong is a genetically modified variety of eggplant that
produces its own insecticidal protein to ward off fruit and shoot borers. It is an eggplant
inserted with a gene that produces Cry1Ac protein, which inhibits the growth of the fruit
and shoot borer larvae. It is similar to the commercially planted Bt corn, containing a gene
from B. thuringiensis expressing Cry 1Ac protein that can kill the eggplant fruit shoot
borer upon ingestion of tissues of the Bt talong. B. thuringiensis, a naturally occurring soil
bacterium, has a long history of use as a microbial insecticide spray on vegetable crops
and accepted by organic farmers. However, microbial spray is not effective against EFSB
hence farmers rely heavily on the use of inorganic insecticides for control. We have
known that prolonged use and exposure to insecticides result to excessive environmental
and health costs to the farms and farming families. The Bt talong project is now on its 11th
year of implementation, and one of the priority projects of the University of the Philippines
Los Baos (UPLB), particularly the Crop Science Cluster (CSC) -Institute of Plant
Breeding (IPB). This project aims to produce a pro-people and pro-environment variety of
eggplant that have the potential to increase yield, improve incomes, reduce dependence
on pesticide use especially chemical pesticides, and enhance consumer choice in the
marketplace. The already-completed field trials in various strategic locations in the
Philippines were cautiously and responsibly taken care of by the researchers and
scientists involved in the project, and were meticulously policed by the Institutional
Biosafety Committee and a representative from the Department of Agriculture,
specifically the Bureau of Plant Industry, in accordance with DA Administrative Order No.
8 and Executive Order No. 514. (UP LABS, 2013)

24

Judicial Application of the Precautionary Principle in Brazil

The Brazilian GMO Case
In Brazil, the precautionary principle was a central aspect of a district court's decision to
enjoin the Brazilian government's approval of genetically modified soybeans for use in
commercial agriculture. The decision, first handed down in 1998 as a preliminary
injunction, required that the government prepare an environmental impact study prior to
approving a GMO. Acao Cautelar, Processo No. 1998.34.00.027681-8, 6 Vara Federal da
Seqfo Judiciaria do Distrito Federal, Juiz Antrnio Souza Prudente (decided on August 10,
1999) [hereinafter District Court Decision in the Agdo Cautelar]; Ac6rddo, Apelaqdo Cfvel
no. 2000.01.00.014661-1/DF, Original case number: 199834000276818, 2' Turma do
Tribunal Regional Federal da 1' Regiio (TRF-1), Juiza Assusete Magalhdes (decided on
August 8, 2000, published in the Didrio de Justiga on March 15 2001, p.84) [hereinafter
Appellate Court Decision in the Aqgo Cautelar]. Aqao Civil Ptblica, Processo No.
1998.34.00.027682-0, 6' Vara Federal da Seq~o Judicidria do Distrito Federal, Juiz
Ant6nio Souza Prudente (decided on June 26, 2000) [hereinafter District Court Decision
of AqAo Civil Pfiblica]. (McAllister, 2005)
In 2004, an appellate court reversed the district court and held that the risk analysis that
formed part of the government's GMO approval process satisfied the precautionary
principle. (McAllister, 2005)
This legal controversy drew international attention due to Brazil's importance in the global
production and trade of agricultural commodities. The case also serves as a significant
example of the application of the precautionary principle by national courts. (McAllister,
2005)

25

In the Brazilian GMO case, the national courts applied the precautionary principle as a
principle of international environmental law. While the courts essentially agreed upon the
principle's status in international law, the district and appellate courts differed in their
assessment of what procedures were necessary to satisfy the precautionary principle.
(McAllister, 2005)

Overview of the Brazilian GMO Case

As the first GMO seed for which commercial approval was sought in Brazil, Monsanto's
"Roundup Ready" (RR) soybeans have been at the center of the Brazilian GMO
controversy.(McAllister, 2005)
In June 1998, Monsanto requested approval for RR soybeans from the responsible
federal agency, the National Technical Commission on Biosafety (CTNBio, Comissao
Tcnica Nacional de Biosseguranqa) pursuant to Brazil's National Biosafety Law of
1995.(McAllister, 2005)
In September 1998, a non-governmental consumer organization, the Brazilian Institute of
Consumer Defense (IDEC, Instituto Brasileiro de Defesa do Consumidor), filed a lawsuit
against the federal government to prevent the approval of RR soybeans.(McAllister,
2005)
In the course of the litigation, the environmental organization Greenpeace Brazil joined
IDEC as a plaintiff. Monsanto of Brazil, and its subsidiary, Monsoy Ltd., joined the federal
government as defendants.(McAllister, 2005)
The first legal action by IDEC was an action for injunctive relief (aqdo cautelar), filed in
Sdo Paulo federal district court in September 1998."(McAllister, 2005)

26

IDEC argued that the Brazilian Constitution required the preparation of an environmental
impact study (EIA, estudo de impacto ambiental) and that CTNBio did not have the power
to authorize RR soybeans without one. The district court granted the preliminary
injunction, which was affirmed and made permanent by a federal district court in Brasilia
in August 1999.(McAllister, 2005)
In August 2000, the Federal Regional Tribunal (TRF, Tribunal Federal Regional) upheld
the injunction on appeal. " The injunction invalidated the governmental approval of RR
soybeans, ordered Monsanto and Monsoy to refrain from marketing RR soybeans, and
required Monsanto and Monsoy to prepare an EIA prior to any future approval of RR
soybeans. The injunction remained in force throughout the adjudication of the case. In
October 1998, IDEC filed the principal legal action in the case, a public civil action (aqdo
civil ptiblica). IDEC again argued that the Constitution required the preparation of an EIA
prior to governmental approval, and it asked the court to prohibit CTNBio from approving
RR soybeans or any other GMO without one.(McAllister, 2005)
In June 2000, the district court decided the case in favor of the plaintiffs.' In addition to
maintaining the injunction that had applied specifically to RR soybeans, the court held
that the CTNBio could not approve any GMO without an EIA. In June 2004, the appellate
court reversed the decision, finding that CTNBio had adequately evaluated the GMO
without preparing an EIA.(McAllister, 2005)
In reaching their decisions, the district court and the appeals court considered two key
issues:
(1) the constitutionality of CTNBio's action and (2) the application of the precautionary
principle. The constitutional question was whether CTNBio violated the
Constitution's environmental provisions by approving RR soybeans without
requiring an EIA. The relevant provision of the Constitution states, "it is the
responsibility of the Government to require, in the form of the law, a prior
environmental impact study, which shall be made public, for installation of works or
activities that may cause significant degradation of the environment."(McAllister,
2005)
27

The district court found that GMOs may cause significant degradation and that the
Constitution thus obligated CTNBio to prepare an EIA for RR soybeans and for any other
GMO proposed for commercial use. The appellate court disagreed, and found that the
Constitution allows for governmental discretion in deciding whether a particular activity
may cause significant degradation. The court held that the National Biosafety Law
granted CTNBio such discretionary power and that CTNBio had not violated the
Constitution by approving RR soybeans without an EIA.(McAllister, 2005)
The district court and the appellate court also based their decisions on their respective
interpretations of the precautionary principle. Importantly, both courts considered the
precautionary principle to be binding international law applicable to the question of GMO
approval. Observing its inclusion in the Convention on Biological Diversity and suggesting
that it had attained the status of customary international law, the district court called the
precautionary principle a "fundamental rule of international environmental protection
law."(McAllister, 2005)
The appellate court similarly noted that the precautionary principle was binding
international law based on its inclusion in the Convention on Biological Diversity and the
Framework

Convention on Climate Change, but it rejected the notion that it was

customary law. Both courts also held that the precautionary principle had been
incorporated into the environmental provisions of the Brazilian Constitution." The district
court found it embodied specifically in the constitutional provision requiring the EIA. The
appellate court cited two other environmental provisions that require the government to
preserve the country's genetic diversity and integrity and to control the production,
marketing, and use of techniques and substances that pose risk to life, the quality of life,
and the environment.' Both courts thus viewed the precautionary principle as applicable
in this case, not only as international law but also as national law. However, they reached
different conclusions about what the precautionary principle requires of the government in
deciding whether to allow GMOs.(McAllister, 2005)

28

District Court Decision: The Precautionary Principle Requires an EIA

The district court held that CTNBio violated the precautionary principle by not requiring
the preparation of an EIA for the approval of RR soybeans and other GMOs. The court
first determine that GMOs presented a significant risk of harm, which it found triggered the
precautionary principle. The court concluded that preparing an EIA was necessary to
carry out the precautionary principle, as an EIA would "enable real-world predictions of
the possible environmental harms caused by the use of GMOs." (McAllister, 2005)
The court explained that "[t]he application of the precautionary principle is losely related
to the evaluation of the impacts of human activities. The EIA incorporates precaution and
prevention of environmental degradation in its methodology."(McAllister, 2005)
For the district court, the preparation of the EIA represented compliance with the
precautionary principle The district court found that other forms of environmental
assessment could not substitute for the EIA. "To apply the precautionary principle, it is
essential that a process of prior impact assessment occur, given the uncertainties of harm,
and this process is the 'Environmental Impact Statement.' As thorough as other
assessments may be, they cannot substitute for this process."(McAllister, 2005)
The court concluded that "[a]s the 'essential procedural tool to evaluate impacts in the
face of uncertainties of harm,' the EIA fulfills the requirement to make the precautionary
principle effective." On this basis, the district court found that CTNBio's reliance on
environmental assessments conducted in other countries did not meet the requirements
of the precautionary principle. According to the district court, the precautionary principle
required that an EIA be conducted in the climatic and ecological context of
Brazil.(McAllister, 2005)
The district court also found that the slow and lengthy nature of the EIA process was
consistent with the precautionary principle.Under Brazilian law, the EIA process requires
that the private or public entity seeking to undertake a potentially harmful project or
activity engage a multidisciplinary team" that proceeds systematically through

four
29

phases: an initial planning phase, a technical study phase, a reporting phase, and an
evaluation phase. There are public notifications and hearings throughout the process. As
the court stated, "[t]he precautionary principle, to be applied effectively, has to take the
place of rushing, of precipitous behavior, of insensible rapidity and the desire for
immediate results."' The court criticized the speed of CTNBio's decision, observing that its
approval of RR soybeans was granted after only one year of experimental
planting.(McAllister, 2005)
The district court's treatment of the constitutional issue and precautionary principle issue
reinforced and complemented each other. The court resolved both issues by determining
that RR soybeans, and indeed any GMO, presented the potential of significant
environmental degradation.' The potential of significant harm triggered both the
constitutional EIA requirement and the precautionary principle, which the court deemed to
be satisfied exclusively by an EIA. (McAllister, 2005)

Appellate Court Decision: CTNBio Satisfied the Precautionary Principle

Unlike the district court the appellate court determined that the Brazilian government
satisfied the precautionary principle in its approval process for RR soybeans. It found that
the Biosafety Law and its regulations incorporated the precautionary principle and that
CTNBio had properly established and followed guidelines for GMOs pursuant to this law.
The court further found that CTNBio's analysis pursuant to these guidelines was sufficient
to satisfy the precautionary principle Crucial to this conclusion was the appellate court's
acceptance of CTNBio's reliance on the technical information provided by Monsanto
based on studies in foreign countries rather than studies specific to Brazil.(McAllister,
2005)
The court therefore concluded that the government had satisfied the requirements of the
precautionary principle. The appellate court observed that the National Biosafety Law and
its regulations incorporated the precautionary principle. In the court's view, the law
accounted for scientific uncertainty in its requirement that CTNBio certify biotechnology
organizations, authorize GMOs o a case- by-case basis, and receive notification of any
30

accidents or sicknesses possibly related to GMOs. The court noted that the law also
directs CTNBio to stop a biotechnology-related activity immediately if there are serious
risks to human, animal, plant, or environmental health.(McAllister, 2005)
The court noted that CTNBio had established and followed administrative guidelines for
approving GMOs for commercial use. As set forth in the CTNBio guidelines, the
proponent of a new transgenic plant must first apply to CTNBio for approval. The
applicant must include information about the genetic and agronomic characteristics of the
transgenic plant as well as information pertaining to its environmental and health risks.
CTNBio makes the application public by publishing it in the country's official reporter
(DOU, Didrio Oficial da Unido) and submits it to one or more of its internal committees for
study. CTNBio then issues a "conclusive technical opinion" (parecer tdcnico conclusivo),
which it publishes in the DOU.(McAllister, 2005)
The appellate court found that CTNBio had conformed with these guidelines, and it laid
out the process that CTNBio followed. "The court observed that Monsanto's request for
approval of RR soybeans" was considered by CTNBio subcommittees (Comissfes
Setorais Especificas) specialized in the areas of plant, animal, and environmental health."
The court explained that CTNBio used the following elements in making its decision:
Monsanto's original request; Monsanto's response to public comments; expert opinions
by consultants; and documentation from regulatory agencies in Argentina, Canada,
Japan, the United States, the United Kingdom, and the European Union."(McAllister,
2005)
"After analysis of the available information, CTNBio concluded through its process of risk
evaluation, that RR soybeans did not present evidence of risk greater than that of
conventional soybeans." CTNBio issued its conclusive technical opinion approving
Monsanto's request in September 1998."(McAllister, 2005)
The court found that the administrative record was sufficiently compelling to conclude that,
even if the defendants had the burden of proving that RR soybeans are safe, they would
prevail."(McAllister, 2005)
31

The court concluded that this administrative process was sufficient to satisfy the
precautionary principle. As the court stated, "[t]he principle requires that before the
activity [occurs] there should be an assessment that permits the decision maker to
determine [the necessity of] studies in order to avoid eventual harms to people and the
ecosystem." (McAllister, 2005)
In contrast to the district court, the appellate court held that the preparation of an EIA was
not the only type of assessment that could satisfy the principle. The court pointed out that
legal and scientific authorities outside Brazil had evaluated GMOs primarily using
environmental risk assessment techniques rather than through the preparation of an EIA.
"The precautionary principle is not respected simply by the preparation of an EIA. Rather,
the measures necessary to apply the principle depend unequivocally on the analysis of
the potential harms of the proposed activity by the competent governmental agency."' For
the appellate court, the relevant question was whether CTNBio considered and assessed
the environmental risks, not whether it prepared an EIA. Ultimately, the court found that
CTNBio did in fact evaluate and consider the environmental risks with respect to RR
soybeans. The court therefore held that CTNBio satisfied the requirements of the
precautionary principle (McAllister, 2005)

Comparing the Philippine Bt Talong Case and the Brazilian RR

Soybean Case
The Parties
For the Bt Talong Case, petitioners were Greenpeace - Southeast Asia

along with

Magsasaka at Siyentipiko para sa Pag-unlad ng Agrikultura (MASIPAG), Sibol ng Agham

at Teknolohiya (SIBAT), Philippine Misereor Partnership Inc., Pilipina Pilipina, Consumer
Rights for Safe Food, Miriam Peace, Sarilaya, Lingkod Tao Kalikasan, SEARICE,
NO2GMOs Philippines, NASSA, and TFIP. Named respondents were the University of
the Philippines Los Baos Foundation Inc. (UPLB-FI), Environmental Management
Bureau of Department of Environment and Natural Resources (EMB-DENR), Fertilizer
32

and Pesticide Authority-Bureau of Plant Industry (FPA-BPI), UP Mindanao Foundation

Inc.,

and

the

International

Service

for

the

Acquisition

of

Agri-biotech

Applications-Southeast Asia Center (ISAAA).

For the RR Soybeans case, petitioner was a non-governmental consumer organization,
the Brazilian Institute of Consumer Defense (IDEC, Instituto Brasileiro de Defesa do
Consumidor). In the course of the litigation, the environmental organization Greenpeace
Brazil joined IDEC as a plaintiff. Monsanto of Brazil, and its subsidiary, Monsoy Ltd.,
joined the federal government as defendants.

The Petition
In the Bt Talong case, Petition for Writ of Continuing Mandamus and Writ of Kalikasan with
prayer for the issuance of Temporary Environmental Protection Order (TEPO) to stop the
field trials of Bt eggplant. While in Brazil, the lawsuit was to prevent the approval of RR
soybeans.

Venue
In the Philippines, the Supreme Court decided to grant a Writ of Kalikasan in favor of the
petition and remanded the case to the Court of Appeals for reception of evidence,
hearings, and decision. The Supreme Court however did not grant a TEPO. In Brazil, the
case was first filed with the District Court and an Appeal was later filed with the Appellate
Court

Court Action
As earlier stated the Philippine Supreme Court decided to grant a Writ of Kalikasan but
did not grant the TEPO. The Court of Appeals that ultimately decided the case ruled in
favor of the petitioners and ordered the respondents to permanently stop further confined
field trials of Bt talong because these allegedly pose risks to human health and the
environment. A motion for reconsideration was denied and the ruling upheld.
33

In Brazil, the district court decision, first handed down in 1998 as a preliminary injunction,
required that the government prepare an environmental impact study prior to approving a
GMO. Later, the appellate court reversed the district court and held that the risk analysis
that formed part of the government's GMO approval process satisfied the precautionary
principle.

Legal Basis for the decisions

Both judicial bodies in the Philippines and Brazil invoked the Precautionary Principle.
However the application differed.
The "hard-look" doctrine of United States environmental law should serve as a model for
effective judicial review of a government's compliance with the precautionary principle. It
then discusses the extent to which the (Philippine Courts) and the Brazilian district and
appellate courts ensured the Brazilian government's compliance with the precautionary
principle in the GMO case. This section concludes that the district court erred by
substituting its own opinion of the necessary regulatory measures for that of the
governmental agency. It also concludes that a harder look by the appellate court at
CTNBio's decisionmaking process would have strengthened its holding that CTNBio had
satisfied the precautionary principle. the administrative process."(McAllister, 2005)
Courts do not, however, substitute their judgment for that of the administrative agencies."
The ultimate regulatory decision is left to the discretion of the administrative
agency."Accordingly, the court does not make the ultimate decision, but it insists that the
official or agency take a 'hard look' at all relevant factors." The hard-look doctrine serves
as a model for

ensuring "effective but appropriately deferential " judicial review."

(McAllister, 2005)
As

explained

above,

the

precautionary

principle

requires

that

government

decisionmakers consider the extent of scientific uncertainty with respect to potentially

serious or irreversible environmental damages. It further requires that a government
refrain from using scientific uncertainty as a reason for not taking preventative measures.
34

While the precautionary principle does not dictate the regulatory measure that a
government must choose, it may serve as a legitimate basis for taking such preventive
measures. According to this interpretation, the precautionary principle imposes certain
procedural obligations on governmenta decisionmakers. Courts can similarly apply the
hard-look doctrine with respect to the precautionary principle to ensure that government
agencies consider scientific uncertainty while leaving discretion to choose the appropriate
regulatory response to the decisionmaker.' The ultimate decision about how to weigh
scientific uncertainty in applying the precautionary principle is best resolved in the political
sphere. "Judging what is an 'acceptable' level of risk for society is an eminently political
responsibility.(McAllister, 2005)
The courts, however, may use their power of judicial review to ensure that the
decisionmaker has considered scientific uncertainty with respect to potentially serious
environmental damages and has not inappropriately relied on scientific uncertainty in
rejecting a particular regulatory measure. By applying the hard-look doctrine in
precautionary principle cases, courts can steer the narrow course between giving too
much deference to administrative decisions and substituting their own judgment for that
of the executive branch.(McAllister, 2005)

A Hard Look at the Philippine GMO case

In the Philippine GMO Case, the court tackled the question of whether or not the
government had adopted sufficient biosafety protocols in the conduct of field trials adn
feasibility studies on genetically modified organizams to safeguard the environment and
the health of the people. The court took into consideration that there is no single law that
governs the study, introduction and use of genetically modified organisms in the country.
What we have are mere biosafety regulations that were issued by the Department of
Agriculture and the Department of Science and Technology on one hand and the
(Philippine Environmental Impact Statement System (PEISS) of the public respondent
(Environmental Management Bureau (EMB) on the other hand when taken together,
allegedly govern and regulate the field trials of genetically modified organisms in the
country. However, considering the confusion of which laws are applicable, the court
35

surmised that it is high time to re-examine our laws and regulations with the end in view of
adopting a set of standards that would affect more sectors of our society than we could
imagine. (CA-GR-SP No. 00013, May 17, 2013)
The court then conflicts its aregument by stating that: True, there are biosafety
regulations that we follow. And then makes a sweeping statement: However,
considering the irreversible effects that the field trials, and eventually the introduction of bt
talong to the market could possibly bring, we could not take any chances. No less than the
1987 Philippine Constitution guarantees our right to a healthy environment. This Court
perforce is mandated to uphold the aforesaid right if the same is threatened or is put to
risk such as the case at bench. (CA-GR-SP No. 00013, May 17, 2013)
With all due respect to the Honorable Court, the Court erred by substituting its own
opinion of what is the applicable and necessary regulatory measures to be conducted by
the Environmental management Bureau tasked to conduct the same. There should be a
detail as to the purported inadequacy of the existing PEISS Law.
Next, the Court turns itself to the core issue of whether or not the conduct of the bt talong
field trials has violated the constitutional right of the people to a balanced and healthful
ecology. The Court, after careful and judicios scrutiny of the whole matter and the
respective arguments of the parties, finds the petition to be impressed with merit and
ordered the issuance of a Writ of Kalikasan. The Court also found application of the
precautionary principle by stressing that the over-all safety guarantee of the Bt Talong
remains to be unknown. One of the indicators which stresses the products uncertainty is
the fact that the consumption of the said product is prohibited pending its full safety
assessment. (CA-GR-SP No. 00013, May 17, 2013)
The Court has used the precautionary principle gag further safety assessment of the Bt
Talong, thereby locking-in its uncertainty. Discretion must be left to the government
agencies to choose the appropriate regulatory response. The ultimate decision about how
to weigh scientific uncertainty in applying the precautionary principle is best resolved in
the political sphere.
36

The Court further stressed that our Constitutional Right to a balanced and healthful
ecology is a compund right which consists of: (1) the right to ones health which should not
be put to risk by a wilful disturbance of the ecological balance, and (2) the right to live in an
environment of balanced ecological relations. The former speaks of threats to human
health which, in the case of the bt talong field trials, had not yet been assessed and
categorically declared as safe for humans. On the other hand, the latter concerns the
peoples right to a balanced ecology which presuposses that all living things, as they are
naturally ordained are equally necessary to maintain the aforementioned balance. In the
instant case, the field trials of bt talong involve the wilful and deliberate alteration of the
genetic traits of a living element of the ecosystem and the relationship of living organisms
that depend on each other for their survival. Consequently, the field trials of bt talong
cannot be declared by this Court to be safe to humand health and to our ecology, with full
scientific certainty, being an alteration of an otherwise natural state of affairs in our
ecology. (CA-GR-SP No. 00013, May 17, 2013)
This argument is simply justice to nature, that is, justice to include the nonhuman natural
world - individual animals, communities, flora, fauna, and the whole of nature. Nature
must have an opportunity to survive, with ts integrity intact, in the environment of diversity
and autonomy that is characteristic of the biosphere. This is a form of judicial activism as
well as judicial legislation. The preservation of a natural state, though noble is difficult to
achieve for status quo would mean the continued use of topical and worse, systemic
chemicals to make agricultural products resistant to pests. These chemicals continue to
disrupt the ecological balance. Biodiversity also includes the evolution towards the ability
to survive. We cannot limit the use of the precautionary principle to preserve or not, it
must also include, to conserve and protect.

A Hard Look at the Brazilian GMO case

In the Brazilian GMO case, the district court erred by substituting its judgment for that of
the political decisionmaker. The court interpreted the precautionary principle to require a
particular regulatory measure, namely a governmental ban on RR soybeans until after the
37

preparation of an EIA. The court did not examine the administrative record to determine
the basis upon which CTNBio determined that RR soybeans did not present a significant
risk. Rather, by enjoining the approval of RR soybeans until after the preparation of the
EIA, the court made the inherently political judgment that the risks associated with RR
soybeans outweighed the benefits. The district court required that CTNBio take a
cautious approach rather than requiring that CTNBio identify and consider risks with
caution. (McAllister, 2005)
In contrast, the appellate court focused on the actual decisionmaking process of CTNBio.
It observed that CTNBio had established guidelines for approving GMOs and that it had
followed these guidelines in its approval of RR soybeans. However, the court did not
examine CTNBio's decisionmaking process to determine how CTNBio had specifically
accounted for the problem of scientific uncertainty. The court was satisfied by the fact that
CTNBio had considered environmental risks generally, and did not ask the more difficult
questions of whether and how scientific uncertainty regarding such risks had been
factored into its regulatory decision. Notably, the appellate court was also very deferential
to the executive branch. For example, it opened its opinion with the statement that
"members of this Federal Court did not receive a popular mandate to decide public
policies. We judges, in this or any court, do not represent the interests of the majority or
the minority." (McAllister, 2005)
With a deferential approach, the appellate court's review did not ensure that CTNBio had
taken a hard look at the scientific uncertainty surrounding environmental risks. The most
significant area of scientific uncertainty in this case arguably involved the lack of
environmental testing within Brazil. As noted by the appellate court, CTNBio relied on the
environmental assessments that had been performed in other countries, including the
United States, Canada, Argentina, Japan, the United Kingdom, and the European Union.'
Field tests conducted in Brazil had dealt only with the agronomic characteristics of RR
soybeans." (McAllister, 2005)
A recent report by the U.S. National Research Council on the environmental effects of
GMOs makes the relevant point that the assessments of transgenic plants performed by
38

the United States government are limited to "whether and how transgenic plants are
moved and released in the United States," and that environmental risks and impacts not
considered in the United States might be important to consider in other countries.'
(McAllister, 2005)
Although a thorough evaluation of CTNBio's consideration of scientific uncertainty is
beyond the scope of this Article, the lack of environmental studies within Brazil suggests
that the appellate court should have examined not only whether CTNBio evaluated the
environmental risks of GMOs but also whether CTNBio looked at the extent of the
scientific certainty associated with these risks. In order to satisfy the hard-look doctrine,
CTNBio should have been more explicit about the effects of scientific uncertainty on its
decision making process. Taking a hard-look approach, United States courts require that
when there is incomplete of unavailable information, the agency shall always make clear
that such information is lacking. United States federal regulation states that if the cost or
scientific limitations preclude gathering information, the agency must: (1) explain how the
information would help evaluate reasonably forseable significant adverse impacts on the
human environment, (2) summarize existing credible scientific information on such
impacts, and (3) assess these impacts based on generally accepted theoretical
approaches or research methods. (McAllister, 2005)
Similarly, the Brazilian Court should have required that CTNBio identify the areas of
scientific uncertainty implicated in its decision on RR Soybeans. In particular, the court
might have required CTNBIo to consider whether there were relevant areas of scientific
uncertainty and to show how such uncertainty affected CTNBios decision toa pprove RR
Soybeans. Requiring governmental decisionmakers to explicitly identify and assess
areas of scientific uncertainty would ensure effective judicial oversight and compliance
with the precautionary principle. Ultimately it would prevent governmental agencies from
ignoring or disregarding scientifically uncertain but potentially serious environmental
harms. (McAllister, 2005)

39

Recent Developments
The Supreme Court (SC) has allowed the Biotechnology Coalition of the Philippines (BCP)
to intervene in the Bt eggplant case as the Bt eggplant ban threatens other genetically
modified (GM) crops that contribute to food security. Also, saying their right to their
livelihood is being threatened, a group of 11 farmers from Bukidnon and Pangasinan on
Wednesday asked the Supreme Court to reverse a Court of Appeals ruling that stopped
the field testing of genetically modified eggplants in the country. (genet-info.org, last
visited May 30, 2015)
For the RR Soybeans:
The growing of GM soybeans was only legalized in 2005 when it turned out that
three-quarters of the crops growing in the southern state of Rio Grande do Sul were
already using Monsanto's GM soybeans. Apparently, these had been smuggled in from
Argentina. Monsanto claims that many soybeans still are, and uses this as a justification
to impose an unusual levy on Brazilian soybean farmers:
Since the legalization, Monsanto has charged Brazilian farmers 2% of their sales of
Roundup Ready soya beans, which now account for an estimated 85% of the nations
soya-bean crop. The company also tests Brazilian soya beans that are sold as non-GM -if they turn out to be Roundup Ready, the company charges the farmers responsible for
the crops some 3% of their sales.(Moody. 2012)
One way soybeans sold as non-GM can turn out to be the Roundup Ready variety is
thanks to wind-borne GM pollen landing on non-GM crops. And yet instead of being
penalized for contaminating non-GM crops, Monsanto gets paid for it -- a neat trick made
possible by a crazy patent system in which even those who commit infringement
unintentionally are still held liable.(Moody. 2012)
Brazil is now the world's second-largest producer of GM crops (after the US), and most of
them are soybeans, so this levy resulted in huge additional profits for the company down
the years -- and much resentment from the farmers. This led to a legal challenge being
mounted in 2009 by a consortium of farming syndicates in the Rio Grande do Sul state.
Earlier this year, this was successful, not least because the key patents had expired:
40

Giovanni Conti, a judge in Rio Grande do Sul, decided that Monsanto's levy was illegal,
noting that the patents relating to Roundup Ready soya beans have already expired in
Brazil. He ordered Monsanto to stop collecting royalties, and return those collected since
2004 -- or pay back a minimum of US$2 billion.(Moody. 2012)
Monsanto naturally appealed, and also lodged a further legal action with the Brazilian
Supreme Court. But instead of overturning the lower court's judgment, as Monsanto
requested, the Supreme Court has now said that whatever the result of the appeal, it
should be applied to the whole country. If the appeal court rules against Monsanto, it
would represent a disastrously expensive conclusion to Monsanto's Brazilian soybean
adventure. (Moody. 2012)

Judicial Review for the Precautionary Principle

Judicial Power
Judicial power as defined by the Philippine Constitution includes the duty of the courts to
determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government. The
1992 Supreme Court guideline define grave abuse of discretion as such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, the abuse of
discretion must be patent and gross as to amount to an evasion of positive duty or virtual
refusal to perform a duty enjoined by law or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility. (Tolentino, 2010)
The Supreme Court can intervene in the economic sphere through Article 12 of the
Constitution which deals with National Economy and Patrimony. In the field of
environmental law enforcement in the Philippines, judicial review is considered the major
tool by which the Supreme Court has affected both its evolution and policy. (Tolentino, F.
2010. IBP Journal, vol 35 no. 1, August 2010) La Vina writes that the judiciary influences
environmental management through its power of judicial review. Specifically, courts:

41

adjudicate conflicts and violations that arise out of the implementation and
enforcement of laws dealing with the use of natural resources and impact of
human activities on public health and the ecosystem, and

decide on the just apportionment of limited resources (La Vina, 2008)

The Supreme Court being the ultimate arbiter of the meaning of these rules, under our
Constitutional System, all agencies must bow to the Supreme Courts interpretation of
these rules.
Environmental protection should be rooted in social, political and economic realities. The
courts are guided by the principle of Social Justice wherein when the law is clear and valid,
it simply must be applied; but when the law can be interpreted in ways more than one, an
interpretation that favors the underprivileged must be preferred. Environmental cases are
often filed against those with power, from big organizations to government entities,
making this preference to the complainant the default mode.
On the other hand, there is the argument that the Rules on Environmental Protection
violates the doctrine of separation of powers as the writ of kalikasan and writ of continuing
mandamus overreaches to the power of the executive to have full control and supervision
over exploration, development and utilization of natural resources.
Yale Law Professor Peter H. Schuck, citing political scientist Richard E. Neustadt, points
out: the constitutional arrangements known as separation of powers is really a messy
system of separate institutions sharing power.The boundary lines between what each of
the branches may and may not do are all ill-defined, except in the clearest cases, these
lines are politically and legally contestable, intensifying the competition over jurisdiction
and power. xxx In such competitive systems, the courts are often the joker in the
constitutional deck. (Toletino, 2010 citing Speech of Peter H. Schuck, 2004)

42

Rule-Making Power of the Supreme Court

The Constitution confers upon the Supreme Court the power to promulgate not only
procedural rules in relation to the practice of law but encompasses an expanded rule
making power in the enforcement of constitutional rights (Philippine Constitution, Art VIII,
S5(5)) It must be noted that the 1987 Constitution was drafted with a mission to carry out
the socio-economic agenda of the People Power revolution. (Tolentino 2010 citing
Pangalangan 2006) At a time when when political and social revolution were the foremost
concerns, the authors of the Constitution sought to end judicial submissiveness and
created a more empowered court, subject only to the limitation that this power cannot be
exercised to alter substantive rights. (Tolentino 2010 citing Andres v Cabrera, 127 SCRA
802. 1984)
Since the right to a balanced and healthful ecology has been established as an actionable
right, it then falls within the role of the courts to interpret this constitutional provision and
provide a procedure for its enforcement. (Tolentino 2010)

Judicial Activism
When the Rule on the Writ of Amparo took effect last October 24, 2007, (Supreme Court,
A.M. No. 07-9-12SC) quick opposition emerged when some have decried that the
Supreme Court has become an activist court, contrary to its traditional mandate of
passivity (Tolentino 2010 citing Gorzon 2008) THis objection however was quickly muted
because of the majority consensus that the current rule to protect the right of the people to
life, liberty and security, in place at that time, was viewed as inadequate. (Tolentino, 2010)
Pangalangan even painted judicial activism in a positive light when he described it as a
different matter than ordinary activism identified with progressive social causes. He says:
Judicial activism, rather, refers to a judges readiness to use his court, his judicial
decisions, or to use, in a more precise legal term, the power of judicial review, to advance
substantive social and political causes. (Tolentino 2010 citing Pangalangan 2006)

43

Thus, the judicial attempt to fill the gaps in the procedural remedies to protect these
constitutional rights was preferred and supported. (Tolentino 2010)
Litigation can be daunting for those who do not have enough resources to demand
protection from environmental degradation. The Rules of Environmental Laws especially
the provision for the Writ of Kalikasan addresses the gaps in procedural remedies
available in the Philippine legal system.

Judicial Legislation
There is concern that the Writ of Kalikasan is an expansion of supreme courts original
jurisdiction. Since the judiciary is an independent branch, unelected through popular will,
the judiciarys decision was viewed as an unaccountable judgment that is more prone to
abuse than the discretion exercised by the other branches of government. Therefore, the
objection goes, allowing the Courts to legislate will be an additional and possibly an
unrestricted avenue for possible abuse. (Tolentino, 2010)

Implications to Sustainable Development

The principal cause of the conflict surrpunding GMOs is the doubt over the health and
environmental effects of manufacturing the said products. Science is divided on the issue.
While many scientists believe that genetically-modified foods are safe, some scientists
maintain that uncertainty about the effects on human health justifies appropriate caution,
including the possible rise of trade restrictions. Those who supprt genetocally-modified
foods agree that extensive scientific testing should continue butt that in the meantime the
benefits of enriched crops on greater agricultural production are too great to ignore and
are asserted in eliminating world hunger and malnutrition (Tolentino, 2012)
Advocates of sustainable development are also wary of the long term effects that
genetically-modified crops could produce on the environment. They claim that

44

genetically-modified plants can transfer their genes to wild plants and associated insects,
long-term damage to ecosystems, loss of biodiversity, and lack of consumer choice.
(Toletino, 2012 citing Global Trade Negotiations Home Page, last visited September
2009)
Again, proponents for the use of biotechnology, and bio-modification in agriculture point to
the benefits of genetically-modified plants such as the more efficient use of land,
increased quantities of production, enhanced nutritional aspects of food products,
reduced reliance on chemical pesticides or herbicides, and maintenance of germoplasm
collections for future research. (Tolentino, 2012 siting Souza, 2000)
On the other hand, the detractors point out the risks associated with the development and
use of transgenic plants or species, including the potential for environment and human
health injuries resulting from the migration of specific traits to other plants i the
environment to pest-resistant traits in newly-introduced plants, and risks to human
consumers from allergy (Tolentino, 2012 siting Souza, 2000)

Agricultural transformation and rural development

Traditionally, the role of agriculture in economic development has been viewed as passive
and supportive. Based on the historical experience of Western countries, economic
development was seen as requiring a rapid structural transformation of the economy from
one predominantly focused on agricultural activities to a more complex modern industrial
and service society. As a result, agricultures primary role was to provide sufficient low
priced food and manpower to the expanding industrial economy, which was thought to be
the dynamic leading sector in any overall strategy of economic development. (Todaro,M.
& Smith, S. 2012)
An agriculture and employment based strategy of economic development requires at a
minimum three basic complementary elements: 1) accelerated output growth through
technological, institutional and price incentive changes designed to raise the productivity
45

of small farmers; 2) rising domestic demand for agricultural output derived from an
employment oriented urban development strategy; and, 3) diversified, nonagricultural,
labor intensive rural development activities that directly and indirectly support and are
supported by the farming community. (Todaro,M. & Smith, S. 2012)
In site of some impressive rates of per capita GNP growth recorded in LDC regions during
the past few decades, per capita growth in the agricultural sector improved substantially
only in parts of Asia (notably china) while showing progress in Latin America and
significant declines in Africa. (Todaro,M. & Smith, S. 2012)
The United Nations Food and Agriculture Organization (FAO) has repeatedly warned of
catastrophic food shortages. In a majority of African countries, the average per capita
calorie intake has now fallen below minimal nutritional standards. The FAO estimates
that of Africas 750 million people, more than 270 million suffer from some form of
malnutrition associated with inadequate food supplies. (Todaro,M. & Smith, S. 2012)
A major reason for the relatively poor performance of the Third World agriculture has
been the neglect of this sector in the development priorities of their governments. This
neglect in agriculture and the accompanying bias towards investment in the urban
industrial economy can in turn be traced to the misplaced emphasis on rapid
industrialization via import substitution and exchange rate over valuation that permeated
development thinking and strategy during the post war decades. (Todaro,M. & Smith, S.
2012)
Structure of Agrarian Systems:
World agriculture comprises two distinct types of farming 1) the highly efficient agriculture
of the developed countries, where substantial productive capacity and high output per
worker permit a very small number of framers to feed entire countries; and 2) the
inefficient and low productivity agriculture of developing countries, where in many
instances the agricultural sector can barely sustain the farm population, let alone the
burgeoning urban population, even at a minimum level of subsistence. (Todaro,M. &
Smith, S. 2012)
46

Improving small scale agriculture

Technology and innovation: Two major sources of technological innovation can increase
farm yields.

Unfortunately, both have somewhat problematic implications for LDC

agricultural development.

The first is the introduction of mechanized agriculture to

replace human labor. The introduction of heavily mechanized techniques is not only often
ill suited to the physical environment but, more important, often has the effect of creating
more rural unemployment without necessarily lowering per unit costs of food production.
Importation of such machinery can therefore be anti developmental in that its efficient
deployment requires large tracts of land and tends to exacerbate the already serious
problems of rural poverty and unemployment. (Todaro,M. & Smith, S. 2012)
By contrast, biological (hybrid seeds), irrigation and chemical (fertilizer, pesticides)
innovations the second major source are not without their problems. They are land
augmenting; that is, they improve the quality of existing land by raising yields per hectare,
only indirectly do they increase output per worker. These measures are technologically
scale neutral; theoretically, they can be applied equally effectively in large and small
farms. They do not necessarily require large capital inputs or mechanized equipment.
They are therefore particularly well suited for tropical and subtropical regions and offer
enormous potential for raising agricultural output. (Todaro,M. & Smith, S. 2012)

The Environment and Development

Environmental degradation can also detract from the pace of economic development by
imposing high costs on developing countries through health related expenses and the
reduced productivity of resources. The poorest 20% of the worlds population is the group
that will experience the consequences of environmental ills most acutely.

Severe

environmental degradation, due to population pressures on marginal land, has led to

falling farm productivity and per capita food production. (Todaro,M. & Smith, S. 2012)

47

Sustainable development and environment accounting

Environmentalists have used the term sustainability in an attempt to clarify the desired
balance between economic growth on the one hand and environmental preservation on
the other. Although there are many there are many definitions, basically sustainability
refers to meeting the needs of the present generation without compromising the needs of
future generations. For economists, a development path is sustainable if and only if the
stock of overall capital assets remains constant or rises over time. Implicit in these
statements is the fact that future growth and overall quality of life are critically dependent
on the quality of the environment. (Todaro,M. & Smith, S. 2012)

The Precautionary Principle

Precautionary principle is a rule stated in the Section 1 of the Rules of Procedure for
Environmental Cases, which says that the court may use the Precautionary principle in a
case, if there is a lack of full scientific certainty in establishing a causal link between
human activity and environmental effect and if there are: 1) threats to human life or
health; 2) inequity to present or future generations and; 3) prejudice to the environment
without legal consideration of the environmental rights of those affected (as stated in
Section 2).
The Precautionary Principle first appeared in the legal arena during the mid-1980s as part
of the domestic laws of the then West Germany. (K von Moltke, 1988) .
The case of the Precautionary Principle is stated as Principle 15 of the Rio Declaration
viz:
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 (Rio Declaration, 1992)

48

International conventions have adopted the Precautionary Principle. The 1990 Bergen
Ministerial Declaration on Sustainable Development in the ECE Region, was the first
international instrument to consider the Precautionary Principle as part of customary
international law, and therefore binding on all signatory states, by providing that:
In order to achieve sustainable development, policies must be based on the
precautionary principle. Environmental measures must anticipate, prevent and attack the
causes of environmental degradation. Where there are threats of serious or irreversible
damage, lack of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation (1990 Bergen Ministerial Declaration on
Sustainable Development)
The precautionary principle encourages international actors not to hesitate to provide
more protection to human, animal and plant life and their ecosystems against a perceived
harm even in the absence of clear scientific proof. It is implicitly based on the acceptance
that collective human knowledge may have not been able to fully comprehend with
certainty, the consequences of all human activity. In all of its versions, it is therefore
necessarily broad and encompassing. (Leonen, M., 2010)
Commentators accept that there are at least four elements to this principle. First, there
must be appreciation of a degree and certainty of a danger that justifies a regulatory
response. Second, there must be some understanding of the certainty of the perceived
harm and the taking of a regulatory measure. Third, there must be some regulatory
response. Finally, it is generally understood that this regulatory response is provisional
and may be subject to better certainty in the nature and certainty in the risk and the
effectivity of the measures that have so far been taken. (Leonen 2010, citing Applegate
2002)
The first element seems to suggest two dimensions. The body that takes a regulatory
response must have some appreciation of the level of seriousness of the harm.
Furthermore, there must be acceptance of the quantity and quality of the information that
provides the basis for the assessment of the possibility of occurrence of such harm. The
49

acceptance of seriousness of the harm - as opposed to the harm itself - is essentially

subjective. The possibility of the harm happening may not be as subjective and may be
the subject of science and scientific methodology. It is basically a matter of risk
assessment. (Leonen, 2010)
Risk is the probabilistic likelihood of an unplanned, undesired or unwanted event actually
happening. (Leonen 2010 citing Smith) Risk assessment involves hypothesizing cause
and effect, designing and implementing experiments or quasi-experiments that control for
other variables, measuring the results and mathematically quantifying the probabilities.
Risk assessment therefore inherently involves scientific information, methodologies and
analysis. the quantity of scientific research on the same question will raise questions
relating to replicability of the results and therefore would impact on the quality of later
analysis and proof of the original claim as to cause and effect. (Leonen 2010)
The second element of the precautionary principle involves an examination of the
possible effectivity of the mitigating measures. Even with the use of the best available
scientific information, there will always be inherent uncertainty of both risk and the
effectivity of mitigating measures. The Precautionary Principle addresses and hopes to
increase the tolerance for uncertainty for purposes of taking regulatory measures to
address a perceived harm and its imminence (Leonen, 2010)
The third element therefore requires the regulator to take a response. This may not
always mean a prohibition against the human product or intervention. Depending on the
quality of understanding and the degree of acceptance of the risk- the tolerance- there
can be as many policy options as are creatively and politically possible. In other words,
the Precautionary principle does not sanction an attitude that looks at any innovation with
suspicion. At the very least, it declares that uncertainty - even scientific uncertainty should not be used as an excuse for taking a cost effective measure to address a
perceived harm on the environment. (Leonen, 2010)

50

The fourth element is implied in the principle. Since the measures are taken on the basis
of the best available information, or even none at all, it can be argued that further
calibration of the response would have to follow better information. Regulatory bodies
may also learn from doing. Hence the process is iterative and the measures provisional.
(Leonen 2010)
The precautionary principle does not define the required seriousness of the harm, its
probability of occurrence, the measures that are to be taken and the level of certainty of
the information on the basis of which they are taken. It does not also define the processes
that must be put in place to learn from the implementation of the measures and for
regulatory bodies to update themselves in terms of the information taken. Hence, it is
quite vague and provides an approach rather than clear directions to those who adopt it.
(Leonen 2010)
Precautionary Principle as applied in the Supreme Court Rules
Rule 1, Section 4 (f) defines the precautionary principle as a principle which states that
when human activities may lead to threats of serious and irreversible damage to the
environment that is scientifically plausible but uncertain, actions shall be taken to avoid or
diminish that threat.
However, the only place where the principle is used is in Rule 20, Sections 1 and 2, which
state:
SEC.1. Applicability.When there is a lack of full scientific certainty in establishing a
causal link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it. The constitutional right of the
people to a balanced and healthful ecology shall be given the benefit of the doubt.
SEC. 2. Standards for application.In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity
to present or future generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.

51

Thus, the precautionary principle is to be applied when there is a lack of scientific

certainty in establishing a causal link between human activity and environmental effect.
But the application is not automatic. The court must first consider three things before
applying the principle:
(1) threats to human life or health;
(2) inequity to present or future generations; or
(3) prejudice to the environment without legal consideration of the environmental rights of
those affected.
But these provisions do not indicate how the principle is to be applied. The definition cited
earlier also does not provide any guidance, for all it says is that when human activities
may lead to threats of serious and irreversible damage to the environment that is
scientifically plausible but uncertain, actions shall be taken to avoid or diminish that
threat. (Casis, 2012)
Rule 20, Section 1 uses the precautionary principle in the context of appreciation of
evidence or the quantum of evidence required while the definition deals with the principle
as a justification for action. There appears to be a disconnect between the definition and
the application. (Casis, 2012)
During the early meetings of the TWG it was suggested that certain presumptions be
included in the rules so that the burden of proof is shifted to the alleged cause of the
environmental damage. The reason for this was because normally, the cost of providing
scientific proof for causality is beyond the reach of the poor who are often the victim of
environmental harm. However, eventually these presumptions were considered too
radical and removed from the draft. (Casis, 2012)

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Red Flags
Red Flags identified by Casis (2012) are as follows:
A. Locus standi
Rule 2, Sections 4 and 5 provide:
SEC. 4. Who may file.Any real party in interest, including the government and juridical
entities authorized by law, may file a civil action involving the enforcement or violation of
any environmental law.
SEC. 5. Citizen suit.Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen 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. The plaintiff may publish the order once in a newspaper of a
general circulation in the Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their
respective provisions.
The issue of locus standi is very important for environmental cases. The argument is that
because everyone is affected by environmental damage, everyone should have standing
to sue. The problem, however, is that the fact that damage to the environment is spread
out to many makes it nearly impossible to prove specific damage unique to a specific
plaintiff. Objections may also be raised against groups that file cases for environmental
concerns if the members of such groups may not be part of the communities directly
affected by the environmental damage. (Casis, 2012)
During the first few meetings of the TWG, the members reviewed the paper of Justice
Consuelo

Ynares-Santiago

titled

Framework

for

Strengthening

Environmental

Adjudication in the Philippines. In this paper, Justice Ynares- Santiago pointed out that:
In various consultative forums discussing environmental adjudication, the issues of
standing to sue and class suits are always raised. (Casis, 2012)

53

Environmental law advocates often suggest that the Court should relax the rules on
standing to sue and class actions in order to make it easier for the injured parties to file a
case. Because a cause of action only exists if the petitioners have a right that has been
violated and the defendant has a duty to protect that right, in the case of public interest
law groups, while the defendant may have the duty to respect a right which has been
violated, such groups may not be the injured party. Thus, what is important to these
groups is that they are explicitly allowed to file suits on behalf of the injured parties. (Casis,
2012)
Is this request granted by the Green Rules?
No, it is not.
Only a real party in interest can file an environmental case. A real party in interest is one
who stands to be benefited or injured by the judgment in the suit,or the party entitled to
the avails of the suit. An exception is in the case of a writ of kalikasan which explicitly
provides that the writ is filed on behalf of others. (Casis, 2012)
A possible solution may be Section 5. Although Section 5 is intended to codify the Courts
ruling in Oposa v. Factoran, it may not necessarily provide the requested remedy. The
Court in this case characterized it as a taxpayers class suit wherein the minor
petitioners alleged that they represented their generation as well as generations yet
unborn. The Court ruled:
We find no difficulty in ruling that they can, for themselves, for others of their generation
and for the succeeding generations, file a class suit. Their personality to sue on behalf of
the succeeding generations can only be based on the concept of inter generational
responsibility insofar as the right to a balanced and healthful ecology is concerned.
(Casis, 2012)
It should be noted however that Section 5 does not contemplate a class suit but a citizens
suit. Therefore all the requirements for a citizens suit must be complied with. (Casis,
2012)

54

B. Environmental laws?
Rule 1, Section 2 provides:
SEC. 2. Scope.These Rules shall govern the procedure in civil, criminal and special
civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving
enforcement or violations of environmental and other related laws, rules and regulations
such as but not limited to the following:
a.

Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;

b.

P.D. No. 705, Revised Forestry Code;

y.

Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive

Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No.
7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental
Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A.
No. 7900, High- Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act;
R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law; R.A. No. [9513], Renewable Energy Act of 2008;
R.A. No. [9367], Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the environment
and natural resources. (emphasis supplied)
Section 2 lists what are identified as environmental laws. This list includes the following
environmental laws:
a.

Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;

b.

P.D. No. 705, Revised Forestry Code;

c.

P.D. No. 856, Sanitation Code;

d.

P.D. No. 979, Marine Pollution Decree;

e.

P.D. No. 1067, Water Code;

f.

P.D. No. 1151, Philippine Environmental Policy of 1977;

g.

P.D. No. 1433, Plant Quarantine Law of 1978;

h.

P.D. No. 1586, Establishing an Environmental Impact Statement System Including

Other Environmental Management Related Measures and for Other Purposes;

55

i.

R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or

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

R.A. No. 4850, Laguna Lake Development Authority Act;

k.

R.A. No. 6969, Toxic Substances and Hazardous Waste Act;

l.

R.A. No. 7076, Peoples Small-Scale Mining Act;

m. R.A. No. 7586, National Integrated Protected Areas System Act including all laws,
decrees, orders, proclamations and issuances establishing protected areas;
n.

R.A. No. 7611, Strategic Environmental Plan for Palawan Act; o.

R.A. No. 7942,

Philippine Mining Act;

p.

R.A. No. 8371, Indigenous Peoples Rights Act;

q.

R.A. No. 8550, Philippine Fisheries Code;

r.

R.A. No. 8749, Clean Air Act;

s.

R.A. No. 9003, Ecological Solid Waste Management Act;

t.

R.A. No. 9072, National Caves and Cave Resource Management Act;

u.

R.A. No. 9147, Wildlife Conservation and Protection Act;

v.

R.A. No. 9175, Chainsaw Act;

w.

R.A. No. 9275, Clean Water Act;

x.

R.A. No. 9483, Oil Spill Compensation Act of 2007

It can be argued that not all of these laws qualify as environmental laws or can give rise to
an action covered by the Green Rules. For example the primary purpose behind R.A. No.
8371, or the Indigenous Peoples Rights Act is the recognition and promotion of all the
rights of Indigenous Cultural Communities/Indigenous Peoples. It is difficult to identify
specific provisions of this law which can give rise to an action under the Green Rules. The
same can be said for R.A. No. 7076 or the Peoples Small-Scale Mining Act. Inclusion in
this list must go beyond the title of the laws but the actual provisions of the laws
themselves. (Casis, 2012)

56

Rule 1 Section 2 (y) provides:

y.

Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive

Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No.
7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental
Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A.
No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act;
R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law; R.A. No. [9513] , Renewable Energy Act of 2008;
R.A. No. [9367] , Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the environment
and natural resources. (emphasis supplied) (Casis, 2012)
Originally some of these laws listed here were included in the list of environmental laws.
But considering their length and the fact that these laws were not in fact environmental in
nature, they were removed. However, because some considered that these laws may
contain environmental provisions, they were included again in subsection (y), which lists
some laws which may have environmental provisions. (Casis, 2012)
The Green Rule Book attempted to identify which of the provisions of these laws qualify
as possibly being environmental in nature. But these are mere educated guesses and we
will never know until an actual case or controversy comes up. Therefore one red flag
issue with the Green Rules is the doubtful environmental character of the laws included in
the lists in Section 2 of Rule 1. (Casis, 2012)
C. SLAPP Stick?
The SLAPP provisions of the Green Rules have good intentions. It provides those who file
environmental cases an expeditious remedy against attempts to harass them.
Admittedly, employing a SLAPP defense is easier than countering with a malicious
prosecution suit. However, there are some concerns about the application of the SLAPP
provisions.

57

First, it seems that the SLAPP defense is only available after a criminal or civil action is
filed against those filing an environmental case. Even if the SLAPP defense is eventually
successful, the defendants in the environmental case already succeeded in diverting the
time and resources of the original complainants.
Second, it is possible for the SLAPP provisions themselves be an instrument of those
causing the environmental harm. For instance, a large polluting corporation may be
aware that some individuals injured by their pollution is about to file an environmental
case against it. Once the environmental case is filed it raises a SLAPP defense. Under
this scenario the quantum of evidence required is reversed wherein the polluting entity is
only required to provide substantial evidence while the injured party is required to provide
a preponderance of evidence.
Third, SLAPP defenses will most likely be heard by courts who are not designated as
green courts. Therefore courts with less expertise in environmental concerns will rule on
the validity of the environmental claim, albeit merely for purposes of the SLAPP defense.
If these courts find the SLAPP defense unwarranted, how will such ruling affect the rulings
by the green courts themselves in the environmental case?

Contitutionalism and Mimicry

The adoption of foreign jurisprudence in particular cases has the danger of
misunderstanding the context in which such instantiations of doctrines developed in
another jurisdiction or that, in the process of borrowing, something is, as it were, lost in
translation. When individual judges engage in mimicry, it is part of a conscious effort to
justify a particular result. This is easy enough to understand and requires little explanation.
After all, there is nothing in the Philippine Constitution, or in the function of
decision-making, that requires citation of foreign materials. What is more interesting is
what the judges, as a collective, subconsciously do when importation of foreign
jurisprudence becomes, as it has in the Philippines, part of tradition of adjudication. This
is because a tradition, by its nature, is a cultural expectation that can serve as a powerful
constraint, especially when it exists within a small group of practitioners. (Hiblay, 2011)

58

As a habit of thinking, such a tradition of borrowing jurisprudence becomes an

expectation that constructs and defines the political role of judges in the Philippines. The
danger associated with this form of neo-colonialism in the judicial sphere is clear: judges,
instead of crafting solutions to legal problems via a political lens responsive to the
conditions of their local environment, end up mouthing a foreign language that is, first,
accessible only to the learned in the law; second, unresponsive to real issues; and third,
blind to the possibilities of identifying problems endemic to local discourse and solving
such problems unconstrained by the tradition of mimicry. To this extent, colonialism and
its legacies are a force that powerfully influences not only the judges choice of doctrinal
tools, which are but superficial manifestations of such influence, but more importantly, the
way judges apprehend a given legal problem, as it conditions their understanding of their
political role within a particular scheme of ordering. In other words, colonialism affects not
merely the language deployed by judges but also the concepts that construct their vision
of politics. (Hilbay, 2011)
It is through the legal system that the systemic problems arising from inequality of
bargaining power and maldistribution of gains in wealth created by the industrial
revolution are transformed from a public into a private affair. It is, for example, through the
law of contracts that the inequity of the market is reduced to a matter of individual choice,
as opposed to being a question of public policy. This led to the realization that the limited
role of government was not a strategy to ensure the efficient operation of the market but
an artifice designed to impair the ability of the state to lend a helping hand to those who
need it. The realization, on the other hand, was easy to transform into a philosophy of
reform, particularly legal reform - if law can be used to protect those with private property
rights, then it can certainly be used to protect those without it. (Hiblay, 2011)
Judges with life tenure who have been set in the old ways and who view their role as
protectors of present arrangements. A partial explanation for this is the nature of the
Supreme Court as an institution that heavily relies on precedent, thereby maiking it
structurally conservative. (Hiblay, 2011) Furthermore, the nature of adjudication requires
judges to articulate their decisions based on existing law (Art VIII, Sec 14, Philippine
59

Constitution) and universalized legal wisdom, making it difficult, though certainly not
impossible, for them to trailblaze and invent as they go along. These realities of judicial
life, among others, make it easier for the court to promote as operationalized dogma, and
for people to accept as valid, the supposed equivalence between impartiality and
apoliticality. (Hiblay, 2011)
These justifications work usually

well when legislatures and executives, working in

concert, are able to legislate and execute policies that are then applied and interpreted by
courts of law - that is, when everyone participates in the system and recognizes and
agrees with each others roles. The problem arises when judges traditional conception of
their roles collide with the goal of other political branches to recalibrate social
arrangements in response to emergencies. It is when we realize more clearly that
impartiality and apoliticality are not concepts that are fully comprehensible in the abstract.
Pn the contrary, they are descriptives that apply to the work of the High Court only when
everyone agrees about the fundamentals. It is also then that people realize that
everything is normative when basic principles are up for grabs, as is evident in the kinds
of language deployed by partisans. After all, competing visions of social life produce
discordant metaphors; those who seek change deploy the language of freedom, whereas
those who wish to maintain the present order use the language of constraint and
responsibility. (Hiblay, 2011)

60

Conclusion
Changes in ecosystems have important and significant consequences for human
well-being. The non-linear effects of ecosystem changes does not recognize laws, rules,
authorities and jurisdiction. The potential for irreversible changes can and is a strong
justification to exercise precaution. However, precaution has to come from learned and
informed decision-making. Science and research cannot be made the enemy every time
there are technological advances especially in the field of biodiversity. The role of the
Judiciary to hear adversarial arguments in the field of biotechnology should be supported
by risk assessments, cost benefit analysis, ethics and examination of alternatives coming
from collaborative discourse from experts of different fields and democratic participation.
Every biotechnology action should have an impact statement on future generations and
the common wealth, human or non-human. Therefore, Government still has to play a key
role as the trustee of all common goods.

61

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