BORACAY FOUNDATION, INC. v.
THE PROVINCE OF respondents to file their respective comments to the
AKLAN, et al. petition.
FACTS: The Petition was premised on the following grounds,
among others:
Claiming that tourist arrivals to Boracay would reach 1
million in the future, respondent Province of Aklan a) the Province failed to obtain the favorable
planned to expand the port facilities at Barangay endorsement of the LGU concerned;
Caticlan, Municipality of Malay. Thus, on May 7, 2009,
b) the Province failed to conduct the required
the Sangguniang Panlalawigan of Aklan Province issued
consultation procedures as required by the Local
a resolution, authorizing Governor Carlito Marquez to
Government Code (LGC).
file an application with respondent Philippine
Reclamation Authority (PRA) to reclaim the 2.64 The Province responded by claiming that its compliance
hectares of foreshore area in Caticlan. In the same year, with the requirements of DENR-EMB RVI and PRA that
the Province deliberated on the possible expansion led to the approval of the reclamation project by the
from its original proposed reclamation area of 2.64 said government agencies, as well as the recent
hectares to forty (40) hectares in order to maximize the enactments of the Barangay Council of Caticlan and the
utilization of its resources. Sangguniang Bayan of the
After PRA’s approval, on April 27, 2010, respondent Municipality of Malay favorably endorsing the said
Department of Environment and Natural Resources- project, had “categorically addressed all the issues”
Environmental Management Bureau-Region VI (DENR- raised by the BFI in its Petition. It also considered the
EMB RVI) issued to the Province Environmental Petition to be premature for lack of cause of action due
Compliance Certificate-R6-1003-096-7100 (the to the failure of BFI to fully exhaust the available
questioned ECC) for Phase 1 of the Reclamation Project administrative remedies even before seeking judicial
to the extent of 2.64 hectares to be done along the relief.
Caticlan side beside the existing jetty port.
On May 17, 2010, the Province finally entered into a
MOA with PRA which stated that the land use ISSUE:
development of the reclamation project shall be for Whether or not respondent Province failed to perform
commercial, recreational and institutional and other a full EIA as required by laws and regulations based on
applicable uses. It was at this point that the Province the scope and classification of the project
deemed it necessary to conduct a series of public
consultation meetings.
On the other hand, the Sangguniang Barangay of RULING:
Caticlan, the Sangguniang Bayan of the Municipality of Yes. There was lack of comprehensive studies regarding
Malay and petitioner Boracay Foundation, Inc. (BFI), an the impact of the reclamation project to the
organization composed of some 160 businessmen and environment.
residents in Boracay, expressed their strong opposition
to the reclamation project on environmental, socio- To be true to its definition, the EIA report submitted by
economic and legal grounds. respondent Province should at the very least predict the
impact that the construction of the new buildings on
Despite the opposition, the Province merely noted their the reclaimed land would have on the surrounding
objections and issued a notice to the contractor on environment. These new constructions and their
December 1, 2010 to commence with the construction environmental effects were not covered by the old
of the project. Thus, on June 1, 2011, BFI filed with the studies that respondent Province previously submitted
Supreme Court the instant Petition for Environmental for the construction of the original jetty port in 1999,
Protection Order/Issuance of the Writ of Continuing and which it re-submitted in its application for ECC in
Mandamus. Thereafter, the Court issued a Temporary this alleged expansion, instead of conducting updated
Environmental Protection Order (TEPO) and ordered the and more comprehensive studies.
The Local Government Code establishes the duties of (TCIC), a subsidiary of TCC, for the construction,
national government agencies in the maintenance of installation, and operation of 2x150-MW Circulating
ecological balance, and requires them to secure prior Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at
public consultation and approval of local government Sitio Naglatore.
units for the projects described therein.
On June 6, 2008, TCC assigned all its rights and
Under the Local Government Code, therefore, two interests under the MOU dated July 28, 2006 to
requisites must be met before a national project that Redondo Peninsula Energy, Inc. (RP Energy).
affects the environmental and ecological balance of
RP Energy then contracted GHD Pty., Ltd. (GHD) to
local communities can be implemented: prior
prepare an Environmental Impact Statement (EIS) for
consultation with the affected local communities, and
the proposed coal-fired power plant and to assist RP
prior approval of the project by the appropriate
Energy in applying for the issuance of an ECC from the
sanggunian. Absent either of these mandatory
Department of Environment and Natural Resources
requirements, the projects implementation is illegal.
(DENR). The Sangguniang Panglungsod of Olongapo
Based on the above, therefore, prior consultations and City issued Resolution No. 131, Series of 2008,
prior approval are required by law to have been expressing the city government’s objection to the coal-
conducted and secured by the respondent Province. fired power plant as an energy source and urging the
Accordingly, the information dissemination conducted proponent to consider safer alternative sources
months after the ECC had already been issued was ofenergy for Subic Bay.
insufficient to comply with this requirement under the
On December 22, 2008, the DENR, through former
Local Government Code.
Secretary Jose L. Atienza, Jr., issued an ECC for the
In essence, the above-quoted rule shows that in cases proposed 2x150-MW coal-fired power plant.
requiring public consultations, the same should be
Sometime thereafter, RP Energy decided to include
initiated early so that concerns of stakeholders could be
additional components in its proposed coal-fired power
taken into consideration in the EIA study. In this case,
plant. On July 8, 2010, the DENR-EMB issued an
respondent Province had already filed its ECC
amended ECC (first amendment) allowing the inclusion
application before it met with the local government
of additional components, among others.
units of Malay and Caticlan.
Several months later, RP Energy again requested the
_____________________________________________
DENR-EMB to amend the ECC. Instead of constructing a
• Paje v. Casiño, GR 207275, 3 February 2015 2x150-MW coal-fired power plant, as originally planned,
it now sought to construct a 1x300-MW coal-fired
FACTS:
power plant.
In February 2006, Subic Bay Metropolitan Authority
On May 26, 2011, the DENR-EMB granted the request
(SBMA), a government agency organized and
and further amended the ECC (second amendment).
established under Republic Act No. (RA) 7227, and
The Sangguniang Panglalawiganof Zambales issued
Taiwan Cogeneration Corporation (TCC) entered into a
Resolution No. 2011-149, opposing the establishment of
Memorandum of Understanding (MOU) expressing their
a coal-fired thermal power plant. The Liga ng mga
intention to build a power plant in Subic Bay which
Barangayof Olongapo City issued Resolution No. 12,
would supply reliable and affordable power to Subic Bay
Series of 2011, expressing its strong objection to the
Industrial Park (SBIP).
coal-fired power plant as an energy source.
On July 28, 2006, SBMA and TCC entered into another
Hon. Casino’s group filed for a writ of kalikasan
MOU, whereby TCC undertook to build and operate a
against RP energy, SBMA, DENR. The Casiño Group
coal-fired power plant.
alleged, among others, that the power plant project
On April 4, 2007, the SBMA Ecology Center issued would cause environmental damage. that it would
SBFZ Environmental Compliance Certificate (ECC) in adversely affect the health of the residents of the
favor of Taiwan Cogeneration International Corporation
municipalities of Subic, Zambales, Morong, Hermosa, - Issued without prior consultation and approval of all
and the City of Olongapo. the sanggunians concerned as under secs 26 and 27 of
the LGC
While the case was pending in the CA, RP Energy
applied for another amendment to its ECC proposing - In violation of sec 59 chapter VIII of the IPRA Law
the construction and operation of a 2x300-MW coal which enjoins all departments and other governmental
fired power plant agencies from granting any lease without a prior
certification that the area affected does not overlap
CA:
with any ancestral domain
Denied the writ of kalikasan due to the failure of the
- no CNO was secured from the NCIP prior to the
Casiño Group to prove that its constitutional right to a
execution of the LDA and that the CNO dated October
balanced and healthful ecology was violated or
31, 2012 was secured during the pendency of the case
threatened
and was issued in connection with RP Energy’s
- no reason also to nullify sec 8.3 of DAO 2003-30) application for a 2x300 MW Coal fired plant
which allows amendments of ECCs. Not ultra vires, as
ISSUE:
the express power of the Secretary of DENR, director
and regional directors of the EMB to issue an ECC This brings us to the next logical question, did the
impliedly includes the incidental power to amend the EPRMP provide the necessary information in order for
same. the DENR-EMB to assess the environmental impact of
RP Energy’s request relative to the first amendment?
- The validity of the said section cannot be collaterally
attacked in a petition for a writ of kalikasan RULING:
But invalidated the ECC for non-compliance with the It may be observed that, based from the above, DAO
IPRA law and LGC and failure to affix the signature in 2003-30 and the Revised Manual appear to use the
the sworn statement of full responsibility terms “operating” and “existing” interchangeably. In
the case at bar, the subject project has not yet been
- Non-compliance with sec 59 of IPRA Law (enjoins all
constructed although there have been horizontal
departments and other governmental agencies from
clearing operations at the project site.
granting any lease without a prior certification that the
area affected does not overlap with any ancestral
domain) - The CA also invalidated the LDA entered into
On its face, therefore, the theory of the Casiño Group,
by SBMA and RP Energy as it was issued without the
as sustained by the appellate court — that the EPRMP is
prior consultation and approval of all the sanggunians
not the appropriate EIA document type— seems
concerned as required under Sections 26 and 27 of the
plausible because the subject project is not: (1)
LGC
operating/existing with a previous ECC but planning or
- For failure of Luis Miguel Abolitz, director of RP Energy applying for modification or expansion, or (2) operating
to affix his signature in the sworn statement of full but without an ECC. Instead, the subject project is an
responsibility (integral part of the ECC) unimplemented or a non-implemented, hence, non-
operating project with a previous ECC but planning for
- The first and second amendment for failure to comply
modification or expansion.
with the restrictions in the ECC which requires that any
expansion of the project beyond the project description
or any change in the activity shall be subject to a new
The error in the above theory lies in the failure to
environmental impact assessment
consider or trace the applicable provisions of DAO 2003-
Invalidated the LDA entered into by SBMA and RP 30 and the Revised Manual on amendments to an ECC.
Energy
The proper starting point in determining the validity of
the subject first amendment, specifically, the propriety
of the EIA document type (i.e., EPRMP) which RP Energy
submitted in relation to its application for the aforesaid
In the first place, the Casiño Group never attempted to
amendment, must of necessity be the rules on
prove that the subject EPRMP, submitted by RP Energy
amendments to an ECC.174 This is principally found in
to the DENR-EMB, was insufficient for purposes of
Section 8.3, Article II of DAO 2003-03,
evaluating the environmental impact of the proposed
8.3 Amending an ECC modifications to the original project design. There is
no claim that the data submitted were falsified or
Requirements for processing ECC amendments shall
misrepresented. Neither was there an attempt to
depend on the nature of the request but shall be
subpoena the review process documents of the DENR
focused on the information necessary to assess the
to establish that the grant of the amendment to the
environmental impact of such changes.
ECC was done with grave abuse of discretion or to the
grave prejudice of the right to a healthful environment
of those who will be affected by the project. Instead,
8.3.1. Requests for minor changes to ECCs such as the Casiño Group relied solely on the definition of
extension of deadlines for submission of post-ECC terms in DAO 2003-30 and the Revised Manual, which
requirements shall be decided upon by the endorsing approach, as previously discussed, was erroneous.
authority.
In sum, the Revised Manual permits the use of an
EPRMP, as the appropriate EIA document type, for
8.3.2. Requests for major changes to ECCs shall be major amendments to an ECC, even for an
decided upon by the deciding authority. unimplemented or non-implemented project with a
previous ECC, such as the subject project.
Consequently, we find that the procedure adopted by
8.3.3. For ECCs issued pursuant to an IEE or IEE the DENR, in requiring RP Energy to submit an EPRMP
checklist, the processing of the amendment application in order to undertake the environmental impact
shall not exceed thirty (30) working days; and for ECCs assessment of the planned modifications to the
issued pursuant to an EIS, the processing shall not original project design, relative to the first amendment
exceed sixty (60) working days. Provisions on automatic to the ECC, suffers from no infirmity.
approval related to prescribed timeframes under AO 42
shall also apply for the processing of applications to
amend ECCs. (Emphasis supplied)
Amendments
Typographical error
Extension of deadlines for submission of post-
ECC requirement/s
Extension of ECC validity
Change in company name/ownership
Decrease in land/project area or production
capacity
Other amendments deemed “minor” at the
discretion of the EMB CO/RO Director
We answer in the affirmative.
