BRAGA VS ABAYA
In 2011, the Sasa Wharf was pegged for privatization under the PPP scheme.
The DOTC study served as one of the primary considerations for current
Sasa Wharf expansion project.
On December 21, 2014, the Regional Development Council for Region XI
( the Council ) endorsed the project through Resolution No. 118 subject to
conditions. On April 10, 2015, the DOTC published an invitation to
pre-qualify and bid for the Project.
The petitioners - all stakeholders from Davao City and Samal, Davao del
Norte - filed this Urgent Petition for a Writ of Continuing Mandamus and/or
Writ of Kalikasan.
The petitioners allege: that the DOTC did not conduct prior consultation and
public hearings nor secure the approval of the sanggunian concerned as
required under Sections 26 and 27 of the LGC; (3) that the Davao
City sanggunian had passed a resolution objecting to the project for its
noncompliance with the LGC; and (4) that the DOTC has not yet obtained an
Environmental Compliance Certificate (ECC) as required under P.D. 1586.
They argue that the DOTC's implementation of the project - one that as a
significant impact on the environment - without preparing an Environmental
Impact Statement, securing an ECC, or consulting the affected stakeholders,
violates their constitutional right to a healthy and balanced ecology.
The respondents, through the Office of the Solicitor General (OSG), invoke the
prematurity of the petition. They argue that the Project is still in the bidding
process; thus, there is still no proponent to implement it.
The proponent — not the respondents — has the duty to initiate the
Environmental Impact Assessment (EIA) process and to apply for the issuance
of the ECC. Until the bidding process is concluded, the EIA process cannot be
undertaken and it would be premature to impute noncompliance with the
Environmental Impact Statement System.
Moreover, consultation with the stakeholders and the local government is
premature and speculative at this point because the proponent has not yet
identified the actual details of the project's implementation. Again, compliance
with the consultation requirements of the LGC remains premature pending the
award of the contract.
ISSUE:
Whether the petition for continuing mandamus is premature.
Whether the issuance of the writ of kalikasan warrants.
1. ) Yes. It is still premature.
The SC ruled that the IRR of the EIS System simply designates the responsible
party as the proponent. Ordinarily, the proponent is easy to identify - it is the
natural or juridical person intending to implement the project. But who ane the
proponents in PPP Projects which are a collaborative effort between the
government and the private sector?
Republic Act No. 6957 as amended by R.A. 7718, commonly known as
the Build-Operate-Transfer (BOT) Law, identifies the proponent in a PPP project
as "the private sector entity which shall have contractual responsibility for
the project." Accordingly, there is yet no project proponent responsible for the
EIS and the ECC until the bidding process has concluded and the contract has
been awarded (so diri pa tapos an bidding hence warai pa private sector entity).
Considering that the Project is still in the bidding stage, the petition or
continuing mandamus to compel the respondents to submit an EIS and secure
an ECC is premature. It is also misplaced because the public respondents DO
NOT have the duty to submit the EIS or secure an ECC.
The petition is also premature for the purpose of compelling the
respondents to comply with Sections 26 and 27 of the LGC.
The issuance of the ECC does not exempt the project from compliance with
other relevant laws. The LGC, in particular, requires the government agency
authorizing the project to conduct local consultation and secure prior consent
for ecologically impactful projects.
The duty to consult the concerned local government units and the stakeholders
belongs to the national government agency or GOCC. In this case, this refers to
the DOTC.
The agency is responsible for ensuring that: (1) the concerned LGUs and
stakeholders have been thoroughly and truthfully informed of the objectives of
the program and its ecological impact on the community; so that (2) the
community, through their sanggunian, can intelligently give their approval to
socially acceptable projects and reject the unacceptable ones. These
requirements must be complied with before the project is implemented.
But when does implementation begin?
It is well settled that the signing of the finalized contract incorporating the
detailed engineering design is the reckoning point when implementation can
begin. This is the start of the Construction Stage.
Here, the Sasa Wharf Modernization Project has not yet reached the
construction stage. The bidding process had not even been concluded when ithe
present petition was filed. On this account, the petition is also premature for the
purpose of compelling the respondents to comply with Sections 26 and 27 of the
LGC.
2. No. The petition does not warrant a writ of Kalikasan.
The writ is a remedy to anyone whose constitutional right to a balanced and
healthful ecology is violated or threatened with violation by an lawful act or
omission. However, the 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 in order to warrant the issuance of the writ.
The petitioners claim that the environmental impacts of port operations "are
within the field of air emissions, water quality, soil, waste, biodiversity, noise
and other impacts. These environmental impacts can have consequences for
the health of the population of the port city, especially the poorer parts of port
cities."
However, these allegations are insufficient to warrant a writ of kalikasan.
First, the petition failed to identify the particular threats from the Project itself.
All it does is cite the negative impacts of operating a port inside a city based on
the Synthesis Report. However, these impacts already exist because the Port of
Davao has been operating since 1900. The Project is not for the creation of
a new port but the modernization of an existing one. At best, the allegations in
support of the application for the writ of kalikasan are hazy and speculative.
Second, the joint publication is titled Managing Impacts of Development in the
Coastal Zone for a reason; it identifies the potential environmental impacts and
proposes mitigation measures to protest the environment. The petition is
misleading because it only identified the isks but neglected to mention the
existence and availability of mitigating measures
Further, we fail to see an environmental risk that threatens to prejudice the
inhabitants of two or more cities or municipalities if we do not estrain the
conduct of the bidding process. The bidding process is not equivalent to the
implementation of the project. The bidding process itself cannot conceivably
cause any environmental damage.
Finally, it is premature to conclude that the respondents violated the conditions
of Resolution No. 118 issued by the Regional Development Council of Region XI.
Notably, the Resolution requires compliance before
the implementation of the project. Again, the project has not yet
reached the implementation stage.
