Boracay Foundation Vs Province of Aklan

BORACAY FOUNDATION, INC.
, Petitioner
vs.
THE PROVINCE OF AKLAN, REPRESENTED BYGOVERNOR CARLITO S.
MARQUEZ, THE PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB
(REGION VI), Respondents
June 26, 2012
G.R. No. 196870
FACTS:
Boracay Island (Boracay), a tropical paradise located in the
Western Visayas region of the Philippines and one of the countrys most popular
tourist destinations. The island comprises the barangays of Manoc-manoc, Balabag,
and Yapak, all within the municipality of Malay, in the province of Aklan. Respondent
Province operates both ports to provide structural facilities suited for locals, tourists
and guests and to provide safety and security measures. In 2005, Boracay 2010
Summit was held and participated in by representatives from national government
agencies, local government units (LGUs), and the private sector. The summit yielded
a report which showed that there was a need to expand the port facilities at
Caticlan due to congestion in the holding area of the existing port, caused by
inadequate facilities, thus tourists suffered long queues while waiting for the boat
ride going to the island.
On May 7, 2009, the Sangguniang Panlalawigan of respondent Province
issued Resolution No. 2009110, which authorized Governor Marquez to file an
application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan
with respondent PRA. Within the same month of October 2009, respondent Province
deliberated on the possible expansion from its original proposed reclamation area of
2.64 hectares to forty (40) hectares in order to maximize the utilization of its
resources and as a response to the findings of the Preliminary Geohazard
Assessment study which showed that the recession and retreat of the shoreline
caused by coastal erosion and scouring should be the first major concern in the
project site and nearby coastal area.
Respondent PRA approved the reclamation project on April 20, 2010 in its
Resolution No. 4094 and authorized its General Manager/Chief Executive Officer
(CEO) to enter into a MOA with respondent Province for the implementation of the
reclamation
project.
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-0967100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of
2.64 hectares to be done along the Caticlan side beside the existing jetty port. On
June 1, 2011, petitioner filed the instant Petition for Environmental Protection
Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011, this Court
issued a Temporary Environmental Protection Order (TEPO) and ordered the
respondents to file their respective comments to the petition. After receiving a copy
of the TEPO on June 9, 2011, respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned contractor to cease and desist
from conducting any construction activities until further orders from this Court.
Petitioner also questions the classification made by respondent Province that
the reclamation project is merely an expansion of the existing jetty port, when the
project descriptions embodied in the different documents filed by respondent
Province describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new
project. Petitioner likewise cries foul to the manner by which respondent Province
allegedly circumvented the documentary requirements of the DENR-EMB RVI by the
act of connecting the reclamation project with its previous project in 1999 and
claiming that the new project is a mere expansion of the previous one.
ISSUE:
Whether or not respondent Province failed to perform a full EIA
as required by laws and regulations based on the scope and classification of the
project
RULING:
Respondent Province filed a Manifestation and Motion stating that the
ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in
Caticlan, and its application for reclamation of 40 hectares with respondent PRA was
conditioned on its submission of specific documents within 120 days. Respondent
Province claims that its failure to comply with said condition indicated its waiver to
pursue the succeeding phases of the reclamation project and that the subject
matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its
part, declared through its General Manager that the Aklan Beach Zone Restoration
and Protection Marine Development Project will now be confined to the reclamation
and development of the 2.64 hectares, more or less.
The Court notes such manifestation of respondent Province. Assuming, however,
that the area involved in the subject reclamation project has been limited to 2.64
hectares, this case has not become moot and academic, as alleged by respondents,
because the Court still has to check whether respondents had complied with all
applicable environmental laws, rules, and regulations pertaining to the actual
reclamation project.
We recognize at this point that the DENR is the government agency vested with
delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs
to project proponents. It is the DENR that has the duty to implement the EIS
system. It appears, however, that respondent DENR-EMB RVIs evaluation of this
reclamation project was problematic, based on the valid questions raised by
petitioner.
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of
the project to address the question of whether this could be deemed as a group of
single projects (transport terminal facility, building, etc.) in a contiguous area
managed by respondent Province, or as a single project.
The very definition of an EIA points to what was most likely neglected by respondent
Province as project proponent, and what was in turn overlooked by respondent
DENR-EMB RVI, for it is defined as follows:
An [EIA] is a process that involves predicting and evaluating the likely impacts of a
project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the communitys welfare.
As may be gleaned from the breakdown of the 2.64 hectares as described by
respondent Province above, a significant portion of the reclaimed area would be
devoted to the construction of a commercial building, and the area to be utilized for
the expansion of the jetty port consists of a mere 3,000 square meters (sq. m). To
be true to its definition, the EIA report submitted by respondent Province should at
the very least predict the impact that the construction of the new buildings on the
reclaimed land would have on the surrounding environment. These new
constructions and their environmental effects were not covered by the old studies
that respondent Province previously submitted for the construction of the original
jetty port in 1999, and which it re-submitted in its application for ECC in this alleged
expansion, instead of conducting updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay
are separated only by a narrow strait. This becomes more imperative because of the
significant contributions of Boracays white-sand beach to the countrys tourism
trade, which requires respondent Province to proceed with utmost caution in
implementing projects within its vicinity.
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to
make a proper study, and if it should find necessary, to require respondent Province
to address these environmental issues raised by petitioner and submit the correct
EIA report as required by the projects specifications. The Court requires respondent
DENR-EMB RVI to complete its study and submit a report within a non-extendible
period of three months. Respondent DENR-EMB RVI should establish to the Court in
said report why the ECC it issued for the subject project should not be canceled.

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