ARELLANO UNIVERSITY SCHOOL OF LAW

NATURAL RESOURCES AND ENVIRONMENTAL LAW CLASS

MICHAEL ANGELO L. MEMORACION

PHILIPPINE CLEAN WATER ACT (REPUBLIC ACT NO. 9275)

The Philippine Clean Water Act of 2004 aims to protect the country’s water bodies from
pollution from land-based sources (industries and commercial establishments, agriculture and
community/household activities). It provides for a comprehensive and integrated strategy to
prevent and minimize pollution through a multi-sectoral and participatory approach involving all
the stakeholders. As early as 1996, monitory of the country’s rivers showed that only 51% of the
classified rivers still met the standards for their most beneficial use. The rest were polluted from
domestic, industrial and agricultural sources. Most studies point to the fact that domestic
wastewater is the principal cause of organic pollution (at48%) of our water bodies. Yet, only 3%
of investments in water supply and sanitation were going to sanitation and sewage treatment. A
recent World Bank report pointed out that Metro Manila was second to the lowest in sewer
connections among major cities in Asia and less that 7% compared to 20% for Katmandu, Nepal
and 30% for Dhaka, Bangladesh. Thirty-one percent (31%) of all illnesses in the country are
attributed to polluted waters. Clearly, to ensure access to clean water for all Filipinos, it was
imperative that government put together a comprehensive strategy to protect water quality .

Management of water quality will either be based on watershed, river basis or water
resources region. Water quality management areas with similar hydrological, meteorological or
geographic conditions which affect the reaction and diffusion of pollutants in water bodies are to
be designated by the DENR in coordination with the National Water Resources Board
(NWRB)Management will be localized. Multi-sectoral governing boards will be established to
manage water quality issues within their jurisdiction. Governing Boards shall be composed of
representatives of mayors and governors as well as local government units, representatives of
relevant national government agencies, duly registered non-government organizations, the
concerned water utility sector and the business sector. The governing boards will formulate
strategies to coordinate policies necessary for the effective implementation of this Act. They will
create a multi-sectoral group to establish and effect water quality surveillance and monitoring.

All owners or operators of facilities that discharge wastewater are required to get a permit
to discharge from the DENR or the Laguna Lake Development Authority. Existing industries
without any permit are given 12 months from the effectivity of the implementing rules and
regulations (IRR) promulgated pursuant to this Act to secure a permit to discharge. The
Department of Public Works and Highways (DPWH), in coordination with local government
units will prepare a national program on sewage and septage management not later than 12
months from effectivity of this Act. A priority list will likewise be prepared which will be the
basis for the allotment of funds on an annual basis by the national government for the
construction and rehabilitation of required facilities. Local-government units will provide the land
including road right of the way for the construction of sewage and/or septage treatment facilities
and raise funds for the operations and maintenance of said facilities.

The Department of Health (DOH) will formulate guidelines and standards for the
collections, treatment and disposal of sewage as well as the guidelines for the establishment and
operation of centralized sewage treatment system. The MWSS and other agencies mandated to
provide water supply and sewerage facilities are required to connect existing sewage lines,
subject to the payment of sewerage service charges/fees within five years following effectivity of
this Act. All sources of sewage and septage are required to comply with the law.

Anyone discharging wastewater into a water body will have to pay a wastewater charge.
This economic instrument which will be developed in consultation with all concerned
stakeholders is expected to encourage investments in cleaner production and pollution control
technologies to reduce the amount of pollutants generated and discharged. Rewards will also be
given to those whose wastewater discharge is better that the water quality criteria of the receiving
body of water. Fiscal and non-fiscal incentives will also be given to LGUs, water districts,
enterprise, private entities and individuals who develop and undertake outstanding and innovative
projects in water quality management.

All possible discharges are required to put up an environmental guarantee fund (EGF) as
part of their environmental management plan. The EGF will finance the conservation of
watersheds and aquifers, and the needs of emergency response, clean up or rehabilitation.

Among other, the Act prohibits the following:

o Discharging or depositing any water pollutant to the water body, or such which will
impede natural flow in the water body
o Discharging, injecting or allowing to enter into the soil, anything that would pollute
groundwater
o Operating facilities that discharge regulated water pollutants without the valid required
permits
o Disposal of potentially infectious medical waste into sea by vessels
o Unauthorized transport or dumping into waters or sewage sludge or solid waste
o Transport, dumping or discharge of prohibited chemicals, substances or pollutants listed
under Toxic Chemicals, Hazardous and Nuclear Wastes Control Act (Republic Act No.
6969)
o Discharging regulated water pollutants without the valid required discharge permit
pursuant to this Act
o Noncompliance of the LGU with the Water Quality Framework and Management Area
Action Plan
o Refusal to allow entry, inspection and monitoring as well as access to reports and records
by the DENR in accordance with this Act
o Refusal or failure to submit reports and/or designate pollution control officers whenever
required by the DENR in accordance with this Act
o Directly using booster pumps in the distribution system or tampering with the water
supply in such a way to alter or impair the water quality
 o Operate facilities that discharge or allow to seep, willfully or through grave negligence,
prohibited chemicals, substances, or pollutants listed under R.A. No. 6969, into water
bodies
o Undertake activities or development and expansion of projects, or operating wastewater
treatment/sewerage facilities in violation of P.D. 1586 and its IRR

Anyone who commits prohibited acts such as discharging untreated wastewater into any
water body will be fined for every day of violation, the amount of not less than Php 10,000 but
not more than Php 200,000. Failure to undertake clean-up operations willfully shall be punished
by imprisonment of not less than two years and not more than four years. This also includes fine
of not less than Php 50,000 and not more that Php 100,000 per day of violation. Failure or refusal
to clean up which results in serious injury or loss of life or lead to irreversible water
contamination of surface, ground, coastal and marine water shall be punished with imprisonment
of not less than 6 years and 1 day and not more than 12 years and a fine of Php 500,000/day for
each day the contamination or omission continues. In cases of gross violation, fine of not less that
Php 500,00 but not more than Php 3,000,000 will be imposed for each day of violation. Criminal
charges may also be filed.

TOXIC SUBSTANCES AND HAZARDOUS AND NUCLEAR WASTE ACT OF 1990

It has been recognized that the public and the environment are at risk in the use or exposure to chemicals
as well as the long-term damage brought about by careless handling or disposal of hazardous wastes

 To control, supervise and regulate activities on toxic chemicals and hazardous waste. Under this
act importation, manufacture, processing, handling, storage, transportation, sale, distribution, use
and disposal of all unregulated chemical substances and mixtures in the Philippines, as well as the
entry even in transit, or storage and disposal of hazardous and nuclear wastes are regulated.
 The Department of Environment and Natural Resources shall be the implementing agency and
shall be assisted by the Inter-Agency Advisory Council
 It provides for the regulation of all chemical substances that may pose threat to public health and
the environment through import, manufacture, sale, use, distribution, and disposal as well as the
regulation of all hazardous wastes from generation, transport, storage, re-use/recycling, treatment
and disposal
 Registration of the following is required to ensure that industrial economic growth is achieved in
an environmentally sound manner to effectively manage hazardous wastes in order to minimize
human and environmental impacts cause by industrial activities:
o Hazardous wastes generators
o Hazardous wastes treater
o Hazardous wastes transporter
 Violators shall be subject to fines, imprisonment, dismissal from office, confiscation and
forfeiture chemical substances and mixtures in favor of the government, deportation and barred
from entry into the Philippines in case of foreigner
 RULES OF PROCEDURE IN ENVIRONMENTAL CASES

The Rules of Procedure for Environmental Cases1 produced by the Supreme Court of the
Republic of the Philippines was adopted on April 29th, 2010 and contains five parts which are divided
into General Provisions, Civil Procedure, Special Civil Actions, Criminal Procedure, and Evidence.
Within these five parts are contained twenty rules which are described herein. Part I Rule 1 commences
with General Provisions. Next, Part II on Civil Procedure contains Rule 2 which deals with Pleadings and
Parties. Then, Rule 3 which has information about the Pre-Trial procedures. Rule 4 focuses on the Trial.
Next, Rule 5 is on Judgment and Execution. Then, Rule 6 on a Strategic Lawsuit Against Public
Participation. Part III on Special Civil Actions contains Rules 7 and 8. Rule 7 contains the famous the
Writ of Kalikasan Rule 8 illuminates on the Writ of Continuing Mandamus. Following Parts I through III,
Part IV on Criminal Procedure contains Rules 9 through 19. Rule 9 focuses on the Prosecution of
Offenses. Rule 10 concentrates Prosecution of Civil Actions, Rule 11 deals with Arrest, Rule 12 discusses
the Custody and Disposition of Seized Items, Equipment, Paraphernalia, Conveyances and Instruments,
Rule 13 explains Provisional Remedies, Rule 14 navigates through the issue of Bail, Rule 15 explains
Arraignment and Plea, Rule 16 is on Pre-Trial, and Rule 17 concentrates on Trial. Rule 18 focus on
Subsidiary Liability, and Rule 19 focuses on Strategic Lawsuit Against Public Participation in Criminal
Cases. Part V on Evidence contains Rule 20 on the Precautionary Principle, Rule 21 on Documentary
Evidence, and to conclude, Rule 22 contains
Final Provisions.

Access to the Courts/Standing to Sue

The first issue this commentary will address is whether or not the legislation creating the
environmental courts in the Philippines will enhance access to the courts (and justice). In the document
“Rules of Procedure for Environmental Cases2”, in Part II on Civil Procedure and under Rule 2 on
Pleadings and Parties, Sections 4 and 5 deal with who may file and citizen suits, respectively. Section 4
states, “any real party in interest, including the government and judicial entities authorized by law, may
file a civil action involving the enforcement or violation of any environmental law.” Section 5 expresses
that “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.”3. The rules provide wide access by
granting standing to any real party in interest. It would be helpful, however, for this phrase, “any real
party in interest”, to be defined in further detail. Of particular interest and unique to Philippines is the
temporal nature and extent of the level of representation. The rules allow parties to represent not only
minors but unborn generations. This is extremely progressive and is appropriate for environmental suits
since the consequences of environmental problems can affect multiple generations, including those not
yet born.

The first clause of Principle 104 of the Rio Declaration on Environment and Development states
that: “Environmental issues are best handled with participation of all concerned citizens, at the relevant
level.” The Rules of Procedure for Environmental Cases addresses this by providing that “any real party
in interest, including the government and judicial entities authorized by law, may file a civil action
involving the enforcement or violation of any environmental law” and that 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…”

The only issue of concern is whether non-citizens who live in the country will have a right to
enforce environmental laws. The phrase “all concerned citizens” referred to in Principle 10 of the Rio
Declaration could potentially refer to those who are not technically citizens but who still live in the
country and are affected by its problems. It would be helpful if these rules could be amended to provide
more clarification on whether “any real party” includes noncitizens.

Principle 10 of the Rio Declaration on Environment and Development states the following:
“Environmental issues are best handled with participation of all concerned citizens, at the relevant level.
At the national level, each individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making processes. States shall
facilitate and encourage public awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including redress and remedy shall be
provided.”, Rio Declaration on Environment and Development,

The most innovative provision found within the new rules, designated as a “Special Civil
Action”, is the writ of Kalikasan, or the writ of nature. The rules state: “The writ is a remedy available to
a natural or judicial person, entity authorized by law, people’s 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 life, health, or property of
inhabitants in two or more cities or provinces.”

Scientific Knowledge

The next inquiry addresses the question of whether the Rules of Procedure for Environmental Cases
facilitates the application of environmental science to decision-making. Part V on Evidence and Rule 20,
entitled “Precautionary Principle”, addresses the application of science to decisions. Section 1 on
Applicability states, “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.” Section 2 extends this notion by identifying the 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; and 3) prejudice to the environment
without legal consideration of the environmental rights of those affected.

With respect to application of environmental science, there is too little information provided
within the Rules of Procedure to know whether science is applied or not. The sentence mandating that the
precautionary principle should be applied starts off by conditioning the phrase on instances where there is
a lack of full scientific certainty. This implies that the starting point should be full scientific certainty. The
inclusion of the words, “full scientific certainty”, demonstrates the importance of scientific inquiry and
that scientific analysis should be incorporated. However, I think that the language can be stronger with
respect to a greater connection between decision making and the application of environmental science.

Effectiveness

The next factor that must be evaluated is the extent to which the legal process protects nature and
improves the environment, instead of simply determining that one particular party prevails and the other
party does not. The fourth clause of Principle 10 of the Rio Declaration states that, “effective access to
judicial and administrative proceedings, including redress and remedy, shall be provided.” Rule 5, entitled
“Judgment and Execution”, contains language on reliefs in a citizen suit in its first section. Section 1
provides, “if warranted, the court may grant to the plaintiff proper reliefs which shall include the
protection, preservation, or rehabilitation of the environment and the payment of attorney’s fees, costs of
suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a
special trust
fund for that purpose subject to the control of the court.”

The fourth clause of the Rio Declaration addressing access to judicial and administrative
proceedings including redress and remedy is definitely satisfied by Section 1 of Rule 5. The extension
beyond financial/monetary compensation into programs of rehabilitation or restoration of the environment
are well thought out and provide a creative alternative to extending commonly applied notions of relief.
Rule 5, dealing with “Judgment and Execution”, outlines the monitoring of compliance with judgment
and orders of the court by a commissioner in Section 4. Specifically, this section states that “[t]he court
may motu proprio, or upon motion of the prevailing party, order that the enforcement of the judgment or
order be referred to a commissioner to be appointed by the court. The commissioner shall file with the
court written progress reports on a quarterly basis or more frequently when necessary.” The fact that there
is a mechanism for regular progress reports indicates that there is a desire to make sure that the
environment is well taken care of and improved well beyond the time of the adjudication of particular
decisions.
Procedural Elements

Procedural issues with respect to the environmental courts and tribunals can be evaluated in a variety of
ways. This includes general accessibility, the costs in creating environmental tribunals, the efficiency or
lack thereof when multiple states in one country have to create environmental tribunals, the existence of
an appellate system, the issue of transparency, the existence of online electronic filing systems to make
access to the courts logistically easier, and global transparency as a whole. The second clause of the Rio
Declaration is that at the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on hazardous
activities in their communities, and the opportunity to participate in the decision-making process.

With respect to the creation of multiple tribunals, the Rules of Procedure for Environmental cases
do not address the creation of multiple tribunals within the country. As far as this factor is concerned, one
needs to take into consideration: (1) the actual size of the country being evaluated and whether or not it is
logical; and (2) due to the physical space within a country, whether it would be necessary to provide a
mechanism to create multiple environmental tribunals or if one is enough. Moreover, the Rules (of
Procedure for Environmental Cases) do not address an appellate system. Finally, the Rules of Procedure
for Environmental Cases do not address the issue of transparency.

The second and third clauses of Principle 10 of the Rio Declaration on Environment and
Development mention access to information (which is discussed in further detail below) and public
participation in the process. Public participation with regard to procedural aspects of a law and/or act
would be the ability to find information and participate electronically as much as possible. Participating
electronically can range from conducting activities such as filing documents online as well as accessing
documents and having a comprehensive (and potentially interactive) website with a plethora of
information.

Access To Information

The concept of access to information is that whereby the public is given access to information
that is being decided by a particular court or jurisdiction. The third clause of Principle 10 of the Rio
Declaration provides that “states shall facilitate and encourage public awareness and participation by
making information widely available.” References to access to information do not exist in the Rules of
Procedure. The objective of the Aarhus Convention is that in order to contribute to the protection of the
right of every person of present and future generations to live in an environment adequate to his or her
health and well-being, each Party shall guarantee the rights of access to information, public participation
in decision making, and access to justice in environmental matters in accordance with the provisions of
this Convention.
 The act does not appear to have any language included within it that relates to access to
information held by the public authorities. However, the act does provide in that “Entries in official
records made in the performance of his duty to a public officer of the Philippines, or by aperson in
performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.”11
Although this section addresses entries made by a public officer, it would be prudent to include language
specifically about access to information in an updated version of these rules.