EN BANC
G.R. No. 189185, August 16, 2016
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON, CRISPIN ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG, FLORENCIA SABANDON, AND LEDEVINA ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION, INC., DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondents.
G.R. No. 189305
CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondent.
D E C I S I O N
BERSAMIN, J.:
This appeal through the consolidated petitions for review on certiorari assails the decision promulgated on January 9, 20091 whereby the Court of Appeals (CA) reversed and set aside the judgment rendered on September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in Davao City upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, to wit:ChanRoblesVirtualawlibrary
WHEREFORE, premises considered, the appeal is GRANTED. The assailed September 22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial Region, Branch 17, Davao City, upholding the validity and constitutionality of Davao City Ordinance No. 0309-07, is hereby REVERSED and SET ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City Government of Davao, and any other person or entity acting in its behalf, from enforcing and implementing City Ordinance No. 0309-07, is hereby made permanent.
SO ORDERED.
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007.3 The ordinance took effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.4 Pursuant to Section 5 of the ordinance, the ban against aerial spraying would be strictly enforced three months thereafter.ORDINANCE NO. 0309-07
Series of 2007
AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY
Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled that:
chanRoblesvirtualLawlibrarySECTION 1. TITLE. This Ordinance shall be known as "An Ordinance Banning Aerial Spraying as an Agricultural Practice in all Agricultural Activities by all Agricultural Entities in Davao City";
SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the method of aerial spraying as an agricultural practice in all agricultural activities by all entities within Davao City;
SECTION 3. DEFINITION OF TERMS:
chanRoblesvirtualLawlibrarya. Aerial Spraying - refers to application of substances through the use of aircraft of any form which dispenses the substances in the air.
b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to their agricultural activities;
c. Agricultural Activities - refer to activities that include, but not limited to, land preparation, seeding, planting, cultivation, harvesting and bagging;
d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural activities
e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of agricultural farms/plantations that need special monitoring to avoid or minimize harm to the environment and inhabitants pursuant to policies and guidelines set forth in this Ordinance and other government regulations. It is an area of land that must lie within the property which does not include public lands, public thoroughfares or adjacent private properties. It must be planted with diversified trees that grow taller than what are usually planted and grown in the plantation to protect those within the adjacent fields, neighboring farms, residential area, schools and workplaces.
SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to all agricultural entities within the territorial jurisdiction of Davao City;
SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced in the territorial jurisdiction of Davao City three (3) months after the effectivity of this Ordinance.
SECTION 6. BUFFER ZONE - Consistent with national legislation and government regulations, all agricultural entities must provide for a thirty (30) meter buffer zone within the boundaries of their agricultural farms/plantations. This buffer zone must be properly identified through Global Positioning System (GPS) survey. A survey plan showing the metes and bounds of each agricultural farm/plantation must be submitted to the City Mayor's Office, with the buffer zone clearly identified therein;
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be punished as follows:
chanRoblesvirtualLawlibrarya. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1) month but not more than three (3) months;
b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3) months but not more than six (6) months and suspension of City-issued permits and licenses for one (1) year;
c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months but not more than one (1) year and perpetual cancellation of City issued permits and licenses;
Provided, that in case the violation has been committed by a juridical person, the person in charge of the management thereof shall be held liable;
SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with any of the provisions of this Ordinance shall be deemed amended or repealed accordingly.
SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from its publication in a newspaper of general circulation in Davao City;
ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang Panlungsod.2chanroblesvirtuallawlibrary
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional in all aspect of the grounds assailed by the petitioner, said [C]ity [O]rdinance No. 0309-07, is sustained of its validity and constitutionality.The RTC opined that the City of Davao had validly exercised police power13 under the General Welfare Clause of the Local Government Code;14 that the ordinance, being based on a valid classification, was consistent with the Equal Protection Clause; that aerial spraying was distinct from other methods of pesticides application because it exposed the residents to a higher degree of health risk caused by aerial drift;15 and that the ordinance enjoyed the presumption of constitutionality, and could be invalidated only upon a clear showing that it had violated the Constitution.16chanrobleslaw
Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary injunction as prayed for by petitioner is ordered cancelled and set aside as a result of this decision.
SO ORDERED.12chanroblesvirtuallawlibrary
Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human rights over property rights and the presumption of validity in favor of the ordinance; that the CA preferred the preservation of the profits of respondents PBGEA, et al. to the residents' right to life, health and ecology,24 thereby disregarding the benevolent purpose of the ordinance; that the CA assumed the functions of the lawmaker when it set aside the wisdom behind the enactment of the ordinance; that the CA failed to apply the precautionary principle, by which the State was allowed to take positive actions to prevent harm to the environment and to human health despite the lack of scientific certainty; that the CA erred in applying the "strict scrutiny method" in holding that the ordinance violated the Equal Protection Clause because it only thereby applied in reviewing classifications that affected fundamental rights; that there was nothing wrong with prohibiting aerial spraying per se considering that even the aerial spraying of water produced drift that could affect unwilling neighbors whose, constitutional right to a clean and healthy environment might be impinged;25cralawred that as far as the three-month period was concerned, the CA should have considered that manual spraying could be conducted while the PBGEA, et al. laid down the preparations for the conduct of boom spraying;26 that "reasonableness" could be more appropriately weighed by balancing the interests of the parties against the protection of basic rights, like the right to life, to health, and to a balanced and healthful ecology;27 that PBGEA, et al. did not substantiate their claim of potential profit losses that would result from the shift; that business profits should remain inferior and subordinate to their fundamental rights as residents of Davao City, which were the rights that the assailed ordinance has sought to protect;28 that PBGEA, et al. did not explore other modes of pesticide treatment either as a stop-gap or as a temporary measure while shifting to truck mounted boom spraying;29 that the imposition of the 30-meter buffer zone was a valid exercise of police power that necessarily flowed from the protection afforded by the ordinance from the unwanted effects of ground spraying; that the imposition of the buffer zone did not constitute compensable taking under police power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw and Piatt30Patalinghug v. Court of Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and that the 30-meter buffer zone conformed with the ISO 1400033 and the DENR Environmental Compliance Certificate (ECC) requirement.34chanrobleslawI
THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL AND VALIDII
THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSEIII
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY RELATED TO THE PURPOSE IT SEEKS TO ACHIEVEIV
THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND FAIRV
THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC] CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE POWER
The City of Davao explains that it had the authority to enact the assailed ordinance because it would thereby protect the environment and regulate property and business in the interest of the general welfare pursuant to Section 458 of the Local Government Code;35 that the ordinance was enacted to carry out its mandate of promoting the public welfare under the General Welfare Clause (Section 16 of the Local Government Code); that the ordinance did not violate the Equal Protection Clause because the distinction lies in aerial spray as a method of application being more deleterious than other modes; that aerial spraying produces more drift that causes discomfort, and an extremely offensive and obnoxious experience the part of the residents; that spray drift cannot be controlled even with use by the respondents of highly advanced apparatus, such as the Differential Global Positioning System, Micronair Rotary Drift Control Atomizers, Intellimap, Intelliflow Spray Valve System, Control and Display Unit and the Target Flow Spray Valve Switch System;36 that because of the inherent toxicity of Mancozeb (the fungicide aerially applied by the respondents), there is no need to provide for a substantial distinction based on the level of concentration;37 that as soon as fungicides are released in the air, they become air pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act of 1999),38 and the activity thus falls under the authority of the local government units to ban; and that the ordinance does not only seek to protect and promote human health but also serves as a measure against air pollution.I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE AND AN UNREASONABLE EXERCISE OF DELEGATED POLICE POWERII
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION;III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT COMPENSATION, THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE CONSTITUTIONIV
WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE AND THE ENVIRONMENT
Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.Section 16 comprehends two branches of delegated powers, namely: the general legislative power and the police power proper. General legislative power refers to the power delegated by Congress to the local legislative body, or the Sangguniang Panlungsod in the case of Dayao City,105 to enable the local legislative body to enact ordinances and make regulations. This power is limited in that the enacted ordinances must not be repugnant to law, and the power must be exercised to effectuate and discharge the powers and duties legally conferred to the local legislative body. The police power proper, on the other hand, authorizes the local government unit to enact ordinances necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the local government unit and its constituents, and for the protection of their property.106chanrobleslaw
Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code. x x xIn terms of the right of the citizens to health and to a balanced and healthful ecology, the local government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution. Following the provisions of the Local Government Code and the Constitution, the acts of the local government unit designed to ensure the health and lives of its constituents and to promote a balanced and healthful ecology are well within the corporate powers vested in the local government unit. Accordingly, the Sangguniang Bayan of Davao City is vested with the requisite authority to enact an ordinance that seeks to protect the health and well-being of its constituents.
There appears to be three (3) forms of ground spraying, as distinguished from aerial spraying, which are: 1. "Truck-mounted boom spraying;" 2. "manual or backpack spraying." and 3. "sprinkler spraying." Petitioners-appellants claim that it was physically impossible for them to shift to "truck-mounted boom spraying" within three (3) months before the aerial spraying ban is actually enforced. They cited the testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA Chairperson, to the effect that since banana plantations in Davao City were configured for aerial spraying, the same lack the road network to make "truck-mounted boom spraying" possible. According to Dr. Fabregar, it was impossible to construct such road networks in a span of three (3) months. Engr. Magno P. Porticos, Jr., confirmed that the shift demands the construction of three hundred sixty (360) linear kilometers of road which cannot be completed in three (3) months.The required civil works for the conversion to truck-mounted boom spraying alone will consume considerable time and financial resources given the topography and geographical features of the plantations.117 As such, the conversion could not be completed within the short timeframe of three months. Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power.
In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to "truck-mounted boom spraying" requires the following steps which may be completed in three (3) years:ChanRoblesVirtualawlibrary1. six (6) months for planning the reconfiguration of banana plantations to ensure effective truck-mounted boom spraying for the adequate protections of the plantations from the Black Sigatoka fungus and other diseases, while maximizing land use;Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee, testified that her committee and the Technical Committee and Engineering Group of PBGEA conducted a feasibility study to determine the cost in undertaking the shift to ground spraying. Their findings fixed the estimated cost for the purpose at Php 400 Million.
2. two (2) months to secure government permits for infrastructure works to be undertaken thereon;
3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as roads, drains, cable ways, and irrigation facilities, which phase may be completed in eighteen (18) months;
4. importation and purchase of trucks mounted with boom spraying, nurse trucks and protective gears. The placing of orders and delivery of these equipments, including the training [of] the personnel who would man the same, would take six (6) months; and cralawlawlibrary
5. securing the needed capitalization to finance these undertakings would take six (6) months to a year.
x x x x
Both appellees failed to rebut the foregoing testimonies with empirical findings to the contrary.
x x x x
Thus, in view of the infrastructural requirements as methodically explained, We are convinced that it was physically impossible for petitioners-appellants to carry out a carefully planned configuration of vast hectares of banana plantations and be able to actually adopt "truck-mounted boom spraying" within three (3) months. To compel petitioners-appellants to abandon aerial spraying in favor of "manual or backpack spraying" or "sprinkler spraying" within 3 months puts petitioners-appellants in a vicious dilemma between protecting its investments and the health of its workers, on the one hand, and the threat of prosecution if they refuse to comply with the imposition. We even find the 3-months transition period insufficient, not only in acquiring and gearing-up the plantation workers of safety appurtenances, but more importantly in reviewing safety procedures for "manual or backpack spraying" and in training such workers for the purpose. Additionally, the engineering works for a sprinkler system in vast hectares of banana plantations could not possibly be completed within such period, considering that safety and efficiency factors need to be considered in its structural re-designing.
x x x x
Respondent-appellee argues that the Ordinance merely banned an agricultural practice and did not actually prohibit the operation of banana plantations; hence, it is not oppressive. While We agree that the measure did not impose a closure of a lawful enterprise, the proviso in Section 5, however, compels petitioners-appellants to abandon aerial spraying without affording them enough time to convert and adopt other spraying practices. This would preclude petitioners-appellants from being able to fertilize their plantations with essential vitamins and minerals substances, aside from applying thereon the needed fungicides or pesticides to control, if not eliminate the threat of, plant diseases. Such an apparent eventuality would prejudice the operation of the plantations, and the economic repercussions thereof would just be akin to shutting down the venture.
This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision because the compulsion thereunder to abandon aerial spraying within an impracticable period of "three (3) months after the effectivity of this Ordinance" is "unreasonable, oppressive and impossible to comply with."116chanroblesvirtuallawlibrary
An ordinance which permanently restricts the use of property that it cannot be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation. It is intrusive and violative of the private property rights of individuals.The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires the planting of diversified trees within the identified buffer zone, the requirement cannot be construed and deemed as confiscatory requiring payment of just compensation. A landowner may only be entitled to compensation if the taking amounts to a permanent denial of all economically beneficial or productive uses of the land. The respondents cannot be said to be permanently and completely deprived of their landholdings because they can still cultivate or make other productive uses of the areas to be identified as the buffer zones.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use without just compensation." The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person's property to benefit society, then society should pay. The principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
There are two different types of taking that can be identified. A "possessory" taking occurs when the government confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no reasonable economically viable use of the property.
In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could be found if government regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.
No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and fairness require that the economic loss caused by public action must be compensated by the government and thus borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the public action.
What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. A regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.
A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner. (bold Emphasis supplied)
The proposed resolution identified aerial spraying of pesticides as a nuisance because of the unstable wind direction during the aerial application, which (1) could potentially contaminate the Davao City watersheds and ground water sources; (2) was detrimental to the health of Davao City residents, most especially those living in the. nearby plantations; and (3) posed a hazard to animals and other crops. Plainly, the mischief that the prohibition sought to address was the fungicide drift resulting from the aerial application; hence, the classification based on the intent of the proposed ordinance covered all agricultural entities conducting aerial spraying of fungicides that caused drift.RESOLUTION NO. ____
Series of 2007
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY
WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts various large farms planted with different crops;
WHEREAS, these farms, lay adjacent to other agricultural businesses and that residential areas abuts these farm boundaries;
WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides and pesticides is being used by investors/companies over large agricultural plantations in Davao City;
WHEREAS, the Davao City watersheds and ground water sources, located within and adjacent to Mount Apo may be affected by the aerial spraying of chemical substances on the agricultural farms and plantations therein;
WHEREAS, the effects of aerial spraying are found to be detrimental to the health of the residents of Davao City most especially the inhabitants nearby agricultural plantations practicing aerials spraying;
WHEREAS, the unstable wind direction during the conduct of aerial spray application of these chemical substances pose health hazards to people, animals, other crops and ground water sources;
WHEREAS, in order to achieve sustainable development, politics must be based on the Precautionary Principle. Environment measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious, irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;
WHEREAS, it is the policy of the City of Davao to ensure the safety of its inhabitants from all forms of hazards, especially if such hazards come from development activities that are supposed to be beneficial to everybody;
WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when dispensed aerially through aircraft because of unstable wind conditions which in turn makes aerial spray drifting to unintended targets a commonplace.
WHEREAS, aerial spraying of pesticides is undeniably a nuisance.
WHEREAS, looking at the plight of the complainants and other stakeholders opposed to aerial spraying, the issue of aerial spraying of pesticides is in all fours a nuisance. Given the vastness of the reach of aerial spraying, the said form of dispensation falls into the category of a public nuisance. Public nuisance is defined by the New Civil Code as one which affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal.
WHEREAS, the General Welfare Clause of the Local Government Code empowers Local Government Units to enact ordinances that provide for the health and safety, promote the comfort and convenience of the City and the inhabitants thereof.
NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the health, safety and peace of mind of all the inhabitants of Davao City, let an ordinance be enacted banning aerial spraying as an agricultural practice in all agricultural entities in Davao City.
x x x x
Primary drift is the off-site movement of spray droplets at, or very close to, the time of application. For example, a field application using a boom in a gusty wind situation could easily lead to a primary drift. Primary spray drift is not product specific, and the active ingredients do not differ in their potential to drift. However, the type of formulation, surfactant, or other adjuvant may affect spray drift potential.Understandably, aerial drift occurs using any method of application, be it through airplanes, ground sprayers, airblast sprayers or irrigation systems.139 Several factors contribute to the occurrence of drift depending on the method of application, viz.:ChanRoblesVirtualawlibrary
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of the gas that forms when an active ingredient evaporates from plants, soil, or other surfaces. And while vapor drift is an important issue, it only pertains to certain volatile products. Vapor drift and other forms of secondary drift are product specific. Water-based sprays will volatize more quickly than oil-based sprays. However, oil-based sprays can drift farther, especially above 95°F, because they are lighter.
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
AERIAL AIRBLAST GROUND CHEMIGATION Droplet size Crop canopy Droplet size Application height Application height Droplet size Boom height Wind speed Wind speed Wind speed Wind speed Swath adjustment Canopy Boom length Tank mix physical properties
Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through the use of aircraft of any form which dispenses the substances in the air." Inevitably, the ban imposed therein encompasses aerial application of practically all substances, not only pesticides or fungicides but including water and all forms of chemicals, regardless of its elements, composition, or degree of safety.We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated the classification established by the ordinance in relation to the purpose. This is the essence of the rational basis approach.
Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance refers to aerial spraying as a method of spraying pesticides or fungicides, there appears to be a need to single out pesticides or fungicides in imposing such a ban because there is a striking distinction between such chemicals and other substances (including water), particularly with respect to its safety implications to the public welfare and ecology.
x x x x
We are, therefore, convinced that the total ban on aerial spraying runs afoul with the equal protection clause because it does not classify which substances are prohibited from being applied aerially even as reasonable distinctions should be made in terms of the hazards, safety or beneficial effects of liquid substances to the public health, livelihood and the environment.147chanroblesvirtuallawlibrary
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the method of aerial spraying as an agricultural practice in all agricultural activities by all entities within Davao City.Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues for the investment of machineries and equipment capable of aerial spraying. It effectively denies the affected individuals the technology aimed at efficient and cost-effective operations and cultivation not only of banana but of other crops as well. The prohibition against aerial spraying will seriously hamper the operations of the banana plantations that depend on aerial technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten their production and harvest. As earlier shown, the effect of the ban will not be limited to Davao City in view of the significant contribution of banana export trading to the country's economy.
The allegation that aerial spraying is hazardous to animal and human being remains an allegation and assumptions until otherwise scientifically proven by concerned authorities and agencies. This issue can be addressed by following Good Agricultural Practices, which DA is promoting among fruit and vegetable growers/plantations. Any method of agri-chemical application whether aerial or non-aerial if not properly done in accordance with established procedures and code of good agricultural practices and if the chemical applicators and or handlers lack of necessary competency, certainly it could be hazardous. For the assurance that commercial applicators/aerial applicators possessed the competency and responsibility of handling agri-chemical, such applicators are required under Article III, Paragraph 2 of FPA Rules and Regulation No. 1 to secure license from FPA.Indeed, based on the Summary Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations,153 submitted by the fact-finding team organized by Davao City, only three out of the 13 barangays consulted by the fact-finding team opposed the conduct of aerial spraying; and of the three barangays, aerial spraying was conducted only in Barangay Subasta. In fact, the fact-finding team found that the residents in those barangays were generally in favor of the operations of the banana plantations, and did not oppose the conduct of aerial spraying.
Furthermore users and applicators of agri-chemicals are also guided by Section 6 Paragraph 2 and 3 under column of Pesticides and Other agricultural Chemicals of PD 11445 which stated: "FPA shall establish and enforce tolerance levels and good agricultural practices in raw agricultural commodities; to restrict or ban the use of any chemical or the formulation of certain pesticides in specific areas or during certain period upon evidence that the pesticide is eminent [sic] hazards has caused, or is causing widespread serious damage to crops, fish, livestock or to public health and environment."
Besides the aforecited policy, rules and regulation enforced by DA, there are other laws and regulations protecting and preserving the environment. If the implementation and monitoring of all these laws and regulation are closely coordinated with concerned LGUs, Gas and NGAs and other private sectors, perhaps we can maintain a sound and health environment x x x.152chanroblesvirtuallawlibrary
Principle 15In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect.156 In such an event, the courts may construe a set of facts as warranting either judicial action or inaction with the goal of preserving and protecting the environment.157chanrobleslaw
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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.
The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people.166chanroblesvirtuallawlibrarySection 5(c) of the Local Government Code accords a liberal interpretation to its general welfare provisions. The policy of liberal construction is consistent with the spirit of local autonomy that endows local government units with sufficient power and discretion to accelerate their economic development and uplift the quality of life for their constituents.
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the following powers and functions:Evidently, the FPA was responsible for ensuring the compatibility between the usage and the application of pesticides in agricultural activities and the demands for human health and environmental safety. This responsibility includes not only the identification of safe and unsafe pesticides, but also the prescription of the safe modes of application in keeping with the standard of good agricultural practices.
chanRoblesvirtualLawlibraryx x x x
III. Pesticides and Other Agricultural Chemicals
1. To determine specific uses or manners of use for each pesticide or pesticide formulation;
2. To establish and enforce levels and good agricultural practices for use of pesticides in raw agricultural commodities;
3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific areas or during certain periods upon evidence that the pesticide is an imminent hazard, has caused, or is causing widespread serious damage to crops, fish or livestock, or to public health and environment;
x x x x
5. To inspect the establishment and premises of pesticide handlers to insure that industrial health and safety rules and anti-pollution regulations are followed;
6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are used in specific crops in accordance with good agricultural practice;
x x x x (Emphasis supplied).
[W]here the state legislature has made provision for the regulation of conduct, it has manifested its intention that the subject matter shall be fully covered by the statute, and that a municipality, under its general powers, cannot regulate the same conduct. In Keller vs. State, it was held that: "Where there is no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject which is completely covered by a general statute of the legislature, may be rendered invalid. x x x Where the subject is of statewide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the State." A reason advanced for this view is that such ordinances are in excess of the powers granted to the municipal corporation.For sure, every local government unit only derives its legislative authority from Congress. In no instance can the local government unit rise above its source of authority. As such, its ordinance cannot run against or contravene existing laws, precisely because its authority is only by virtue of the valid delegation from Congress. As emphasized in City of Manila v. Laguio, Jr.:183
Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of the said law.
It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid. The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state. In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law.182 (Emphasis ours)
The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular No. 02, Series of 2009, entitled Good Agricultural Practices for Aerial Spraying of Fungicide in Banana Plantations.185 While Ordinance No. 0309-07 prohibits aerial spraying in banana plantations within the City of Davao, Memorandum Circular No. 02 seeks to regulate the conduct of aerial spraying in banana plantations186 pursuant to Section 6, Presidential Decree No. 1144, and in conformity with the standard of Good Agricultural Practices (GAP). Memorandum Circular No. 02 covers safety procedures,187 handling188 and post-application,189 including the qualifications of applicators,190 storing of fungicides,191 safety and equipment of plantation personnel,192 all of which are incompatible with the prohibition against aerial spraying under Ordinance No. 0309-07.
This relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.184chanroblesvirtuallawlibrary
Endnotes:
1Rollo (G.R. No. 189185; Vol. I), pp. 72-115; penned by Associate Justice Jane Aurora C. Lantion, with the concurrence of Associate Justice Rodrigo F. Lim, Jr. (retired), Associate Justice Normandie B. Pizarro, and Associate Justice Michael P. Elbinias (deceased); while Associate Justice Romulo V. Borja dissented.
2 Records no. 1, pp. 67-69.
3 Id. at 69.
4Rollo (G.R. No. 189185; Vol. I), p. 74.
5 Records no. 1, pp, 2-60; Entitled "Pilipino Banana Growers and Export Association, Inc., Davao Fruits Corporation and Lapanday Agricultural and Development Corporation, petitioners, versus City of Davao, respondent," docketed as Civil Case No. 31, 837-07.
6 Section 511. Posting and Publication of Ordinances with Penal Sanctions. — (a) Ordinances with penal sanctions shall be posted at prominent places in the provincial capitol, city, municipal or barangay hall, as the case may be, for a minimum period of three (3) consecutive weeks. Such ordinances shall also be published in a newspaper of general circulation, where available, within the territorial jurisdiction of the local government unit concerned, except in the case of barangay ordinances. Unless otherwise provided therein, said ordinances shall take effect on the day following its publication, or at the end of the period, of posting, whichever occurs later.
(b) x x x
(c) The secretary to the sanggunian concerned shall transmit official copies of such ordinances to the chief executive officer of the Official Gazette within seven (7) days following the approval of the said ordinance for publication purposes. The Official Gazette may publish ordinances with penal sanctions for archival and reference purposes.
7 Namely: Wilfredo Mosqueda, Marcelo Villaganes, Crispin Alcomendras, Corazon Sabinada, Rebecca Saligumba, Carolina Pilongo, Alejandra Bentoy, Ledevina Adlawan, and Virginia Cata-ag.
8 Namely: Geraldine Catalan, Julieta Lawagon and Florencia Sabandon.
9 Records no. 1, pp. 228-245.
10 Records no. 4, pp. 1115-1120.
11 Records no. 5, pp. 1422-1430, (The RTC issued the writ of preliminary injunction on June 25, 2007 after the PBGEA posted a P1,000,000.00 bond).
12 Records no. 10, p. 2928.
13 Id. at 2914-2918.
14 Id. at 2912.
15 Id. at 2919-2920.
16 Id. at 2921.
17 Id. at 2926-2927.
18 Id. at 2947-2948.
19 CA rollo (Vol. I), pp. 10-92.
20 Id. at 297-299.
21 Id. at 573-574.
22 Supra note 1.
23Rollo (G.R. No. 189185; Vol. I), pp. 209-227.
24Rollo (G.R. No. 189195; Vol. I), pp. 39-42.
25cralawred Id. at 49-50.
26 Id. at 54-55.
27 Id. at 56-57.
28 Id. at pp. 51-54.
29 Id. at 56.
30 56 Phil. 204 (1931).
31 G.R. No. 104786, January 27, 1994, 229 SCRA 554, 559.
32 G.R. No. 156052, February 13, 2008, 545 SCRA 92, 142.
33 The ISO 14000 family of international standards provides practical management tools for companies and organizations in the management of environmental aspects and assessment of their environmental performance. (See International Organization for Standardization, "Environmental Management: The ISO 14000 family of International Standards," (wnd ed., 2010) available at www.iso.org/iso/home/store/publication_item.htm?pid=PUB100238 last opened on July 14, 2016 at 9:00 a.m.)
34Rollo (G.R. No. 189185; Vol. I), p. 62.
35Rollo (G.R. No. 189305; Vol. I), pp. 82-83.
36 Id. at 88-89.
37 Id. at 89-90.
38 Id. at 68-89.
39 Id. at 45-49.
40 Supra.
41Rollo (G.R. No. 189305; Vol. I), pp. 61-64.
42 Id. at 66.
43 Id. at 71-73.
44 Id. at 77.
45 Id. at 107-108.
46 Section 6, Article XII, 1987 Constitution.
47Rollo (G.R. No. 189185; Vol. I), p. 375.
48Rollo (G.R. No. 189185; Vol. II), pp. 1244-1251.
49 G.R. No. 118127, April 12, 2005, 455 SCRA 308, 342.
50Rollo (G.R. No. 189185; Vol. II), pp. 1265-1266.
51 A period of four (4) to twelve (12) days.
52Rollo (G.R. No. 189185; Vol. II), pp. 1266-1267.
53 Id. at 1331.
54 Id. at 1256.
55 Id. at 1257-1258; according to the respondents' witness, Mr. Richard Billington, the drift at the edge of an area sprayed from the air results to approximately half of the corresponding value for ground application. This observation was based on the AgDrift Model, developed under a Cooperative Research and Development Agreement (CRADA) between the Spray Drift Task Force (SDTF) of the US Environmental Protection Agency (EPA) and the US Department of Agriculture - Agricultural Research Service (USDA-ARS).
56 Id. at 1255.
57FPA Classification Table of pesticides adopted from the World Health Organization (WHO) Classification by Hazards (RTC Records, No. 1, p. 41).
Category and Signal Words Color Band Symbol Acute Toxicity to Rat Oral LD50
(mg/kg BW) Dermal LD50
(mg/kg BW) Solid Liquid Solid LiquidCATEGORY I
DANGER:POISON RED 50 or less 200 or less 100 or less 400 or lessCATEGORY II
WARNING: HARMFUL YELLOW 51 to 500 201 to 200 101 to 1000 401 to 4000CATEGORY III
CAUTION BLUE 501 to 20000 2001 to 3000 Over 1000 Over 4000CATEGORY IV GREEN Over 2000 Over 3000 N/A N/A
58 According to the respondents' witness, Anacleto M. Pedrosa, Jr., Ph.D, acute toxicity to rats of Category IV fungicides require oral ingestion of over 2000 milligrams in solid form per kilogram of body Weight and over 3000 milligrams of such fungicide in liquid form per kilogram of body weight to have any Adverse effect (See RTC Records, No. 4, pp. 1095-1096.)
59Rollo (G.R. No. 189185; Vol. III), pp. 1545-1554; Entitled "Summary Report on the Assessment and Facrfinding Activities on the Issue of Aerial Spraying in Banana Plantations".
60Rollo (G.R No. 189185; Vol. II), pp. 1271-1273.
61 Id. at 1278-1284.
62 Id. at 1285-1286.
63 Id. at 1291.
64 Id. at 1293-1296.
65 "Good agricultural practice" is broadly defined as applying knowledge to addressing environmental, economic and social sustainability for on-farm production and post-production processes resulting in safe and healthy food and non-food agricultural products. The use of pesticides includes the officially recommended or nationally authorized uses of pesticides under actual conditions necessary for effective and reliable pest control. It encompasses a range of levels of pesticide applications up to the highest authorized use, applied in a manner that leaves a residue which is the smallest amount practicable. See FAO-Committee on Agriculture, "Development of a Framework for Good Agricultural Practices" (Rome. March 31-April 4, 2003), http://www.fao.org/docrep/meeting/006/y8704e.htm last accessed July 14, 2016 at 9:40 a.m.
66 The Guide offers practical help and guidance to individuals and entities involved in rising pesticides for food and fibre production as well as hi Public Health programmes. They cover the main terrestrial and aerial spray application techniques. The guide also identifies some of the problems and suggest means of addressing them. See FAO-Committee on Agriculture and Consumer Protection, "Guidelines on Good Practice for Aerial Application of Pesticides (Rome, 2001), http://www.fao.org/docrep/006/y2766e/y2766e00.htm last accessed July 14, 2016 at 9:42 a.m.
67Rollo (G.R. No. 189185; Vol. II), pp. 1300-1301; this includes: (a) notice to the community through the advisory board at least three (3) days before the scheduled date of spraying; (b) determining the flight pattern for the aircraft apphcator using the Differential Global Positioning system (DGPS) to establish precise swath patterns and determine specific points during the flight for the spray valve to be turned on and shut off; (c) pre-inflight inspection of the aircraft, including the cleaning and checking of the spray valves in the Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model) that disperses the solution being sprayed for a consistent droplet-size of 200 to 250 microns to control drift; (d) monitoring by the Spray Supervisor of the weather and environmental conditions in the weather station; and (e) sounding of alarms for fifteen (15) minutes prior to take-off.
68 Id. at 1301; the following are observed: (a) monitoring of wind speed and direction, and weather conditions, and maintaining radio contact with the pilot during aerial spraying operations; (b) diverting road traffic to prevent people from traversing hi areas near the plantations; (c) maintarning a flying ieight clearance of about 3.5 meters above the leaf canopy; (d) ensuring that spraying valves are shut-off at least 50 meters before the edge of the perimeter and before the 30 meter buffer zone.
69 Id. at 1302; includes: (a) DGPS data card recording the swath pattern submitted to the Spray Supervisor; and (b) cleaning of aircraft including the Micronair Rotary Drift Control Atomizers which is being calibrated monthly.
70 Id. at 1302-1303; respondents allegedly invested in sensors, wind meters, wind cones, field thermometers and a central weather station.
71 Id. at 1330; A precision satellite-based navigational system that accurately plots the plantation and guides the pilot in conducting aerial spraying.
72 Id.; An instrument that depicts an accurate map of the plantation, indicating the turn-on and shut-off spray valve points during the flight, and records swath patterns while the aerial spraying is being ponducted.
73 Id.; Allows the pilot to program the grid coordinates of a particular plantation on the DGPS, retrieve navigational guidance for the pilot, monitor ground speed (tailwind and headwind), program and retrieve date to record the actual spraying operation.
74 Id.; Ensures that the droplets of solution released for aerials praying are consistently delivered with each droplet with a size of 250 microns to control drift. It controls the flow and the drift of the solution released for aerial spraying even when the aircraft applicator is operating at 145-240 kilometers per hour.
75 Id.; Controls the rate of application of the solution for aerial application to ensure that the substance being aerially sprayed is consistently and equally applied throughout the entire banana plantation.
76 Id.; A device that will automatically turn on and shut off the spray valves on precise points within the target area as programmed in the GPS.
77Rollo (G.R. No. 189185; Vol. II), p. 1331.
78 Id. at 1307-1311.
79 Id. at 1322.
80 Id. at 1316-1317.
81 Id at 1297-1298.
82 Id. at 1340-1342.
83 Id at 1318-1319.
84 Id. at 1264.
85 Philippine Center for Postharvest Development and Mechanization (PhilMech), "Banana Post-harvest Situationer," http://www.philmech.gov.ph/phindustry/banana.htm., last accessed July 14, 2016 at 9:44 a.m.
86 DA High Value Crops Development Program, http://hvcc.da.gov.ph/banana.htm, last accessed July 14, 2016 at 9:46 a.m.
87 Philippine Statistics Authority, "Philippine Agriculture in Figures, 2013," http://countrystat.psa.gov.ph/?cont=3, last accessed July 14, 2016 at 9:50 a.m.
88 Includes Davao del Norte, Davao City, Compostela Valley, Davao Oriental and Davao del Sur, Panabo City, Tagum, Digos, Island Garden City of Samal.
89 Philippine Satistics Authority, "Regional Profile: Davao," http://countrystat.psa.gov.ph/?cont=16&r=ll, last accessed July 14, 2016 at 9:55 a.m.
90 Farms infested by Panama disease are abandoned and left idle for about five years before recultivation. In Davao City, only 1,800 hectares of the original 5,200 hectares planted to bananas have remained due to the infection. (http://www.ugnayan.com/ph/DavaodelSur/Davao/article/YCL, last accessed April 4, 2015 at 1:57 p.m.) Only two (2) varieties of Cavendish banana are recommended for planting in Effected soil. Otherwise, new crops such as com, cacao and oil palm are recommended for cultivation. See Manuel Cayon, "DA allots P102 million for Panama-disease control among banana growers: Business Mirror (28 April 2015), www.businessmirror.com.ph/2015/04/28/da-allots-p102million-for-panama-disease-control-among-banana-growers).
91 Ploetz, Randy, "Black Sigatoka of Banana: The Most Important Disease of a Most Important Fruit," APS, 2001, http://www.apsnet.org/publications/apsnetfeatures/Pages/blacksigatoka.aspx, last accessed July 14, 2016 at 10:08 a.m.
92https://www.wageningenur.nl/en/show/Another-malor-step-in-better-disease-manasement-in-the-global-banana-sector.htm, last accessed July 14, 2016 at 10:11 a.m.
93 Banana: Diseases, http://nhb.gov.in/fruits/banana/ban002.pdf, last accessed July 14, 2016 at 10:15 a.m.
94 Ploetz, Randy, Black Sigatoka in Pesticide Outlook, Vol. 11, Issue 2000, www.researchinformation.co.uk/pest/2000/B006308H/pdf, last accessed July 14, 2016 at 10:21 a.m.
95 Ploetz, Randy, "Black Sigatoka of Banana: The Most Important Disease of a Most Important Fruit," APS, 2001, http://www.apsnet.org/publications/apsnetfeatures/Pages/blacksigatoka.aspx, last accessed July 14, 2016 at 10:13 a.m.
96Rollo (G.R. No. 189185; Vol. III), p. 1548; Summary Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.
97 Id. at 1547; Summary Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.
98 Id. at 1549; Summary-Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.
99 Id. at 1568-1569.
100Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013, 711 SCRA 771, 785.
101 Section 53. Quorum. - (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. x x x
102 Section 54. Approval of Ordinances. - (a) Every ordinance enacted by the x x x sangguniang panlungsod x x x shall be presented to the x x x city or municipal mayor, as the case may be. If the local chief executive concerned approves the same, he shall affix his signature on each and every page thereof; x x x.
103Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156502, 13 February 2008, 545 SCRA 92, 139-140.
104Rural Bank of Makati, Inc. v. Municipality of Makati, G.R. No. 150763, July 2, 2004, 433 SCRA 362, 371.
105 Sec. 458, Article III, Title III, Book III, R.A. No. 7160.
106Rural Bank of Makati, Inc. v. Municipality of Makati, G.R. No. 150763, July 2, 2004, 433 SCRA 362, 371-372; United States v. Salaveria, 39 Phil. 102, 110 (1918).
107 G.R. No. 101083, July 30, 1993, 224 SCRA 792, 805.
108Fernando v. St. Scholastica's College, G.R. No. 161107, March 12, 2013, 693 SCRA 141, 157, citing White Light Corporation v. City of Manila, No. G.R. No. 122846, January 20, 2009, 576 SCRA 416, 433.
109Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013, 711 SCRA 771, 784-785; citing City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 326.
110 Supra note 103, at 139.
111 Id. at 138.
112Parayno v. Jovellanos, G.R. No. 148408, July 14, 2006, 495 SCRA 85, 93.
113City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 330.
114State v. Old South Amusements, Inc., 564 S.E.2d 710 (2002).
115 See RTC Decision, RTC records No. 10, pp. 2926-2927.
116Rollo (G.R. No. 189185; Vol. I), pp. 86-91.
117 Id. at 1542-2543; based on the report submitted by Engr. Magno Porticos, Jr., the cost and time frame estimate submitted to the PBGEA was based on the requirements of lowland and relatively flat lands where road and drainage system to be constructed will be uniformly straight and equidistant. The cost for plantations consisting of slope terrains and gullies, will vary. See Engineering Committee Report on the Main Engineering Works Needed to Comply with the Ordinance Banning Aerial Spray.
118 G.R. No. 118127, April 12, 2005, 455 SCRA 308, 339-342.
119Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 167.
120Bartolome v. Social Security System, G.R. No. 192531, November 12, 2014; Garcia v. Executive Secretary, G.R. No. 198554, July 30, 2012, 677 SCRA 750, 177.
121JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319, 331.
122Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 606 SCRA 258, 414.
123Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999, 301 SCRA 278, 288.
124City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 348-349.
125 Russell W. Galloway, "Means-End Scrutiny in American Constitutional Law" Loyola of Los Angeles Law Review, Vol. 21, p. 449, available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1557&context=llr last accessed August 16, 2016.
126Social Justice Society (SJS) v. Atienza, Jr., G.R. No. 156052, February 13, 2008, 455 SCRA 92, 138.
127 See the Concurring Opinion of Justice Teresita J. de Castro in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 435, 447.
128Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 532 (1971).
129 Id. Suspect class refers to alienage such as that based on nationality or race.
130 Marcy Strauss, Reevaluating Suspect Classifications, Seattle University Law Review, Vol. 35:135, p. 146, available at http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2059&context=sulr, last accessed August 16, 2016; White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 436-437.
131 See Separate Concurring Opinion of J. Puno (ret.) in Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 81, 94.
132Disini, Jr. v. Secretary of Justice, G.R. No. 203335, February 18, 2014, 716 SCRA 237, 301.
133 In determining the reasonableness of a classification, one must look beyond the classification to the purpose of the law which is the elimination of a mischief. This gives rise to two (2) classes: the first consists of all individuals possessing the defining character or characteristics of the legislative classification ("Trait"); the second would consist of all individuals possessing or tainted by the mischief at which the law aims. See Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REV. 341 (1949), available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3493econtext=californialawreview Last accessed August 16, 2016.
134 RTC records no. 8, pp. 2361-2362 (Submitted as Exhibit "10" of the petitioners-intervenors).
135 This includes Hand sprayers and atomizers, Hand compressed sprayers, Knapsack sprayers, Tractor-mounted sprayer, Motorized knapsack mist blowers, Ultra low volume or controlled-droplet applicators (ULV/CDA), Fogging machines/fogair sprayers, Hand-carried dusters, Hand-carried granule applicators, Power dusters, Aerial application (Aircraft sprayers), and Injectors and fumigation equipment (S.K. Pal and S.K. Das Gupta, "Pesticide Application" Skill Development Series-No. 17, ICRISAT Training and Fellowship Program, International Crops Research Institute for the Semi-Arid Tropics, available at http://oar.icrisat.org/2430/l/Pesticide-Application.pdf, accessed August 16, 2016, 1:52 p.m.
136 Food and Agriculture Organization of the United States. Guidelines on Good Agricultural Practice for Ground Application of Pesticides. Rome 2001.
137 Susan Cordell, and Paul B. Baker, Pesticide Drift, available at http://extension.arizona.edu/sites/extension.arizona.edu/files/pubs/az1050.pdf, last accessed August 16, 2016.
138 Id.
139 F.M. Fishel and J.A. Ferrell, Managing Pesticide Drift, available at http://edis.ifas.ufl.edu/pi232, last accessed August 16, 2016.
140Rollo (G.R. No. 189185; Vol. III), p. 1548; Summary Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.
141Rollo (G.R. No. 189185; Vol. III), p. 1549; Summary Report on the Assessment and Factfinding Activities on the Issue of Aerial Spraying in Banana Plantations.
142 Id. at 1566; According to Regional Health Director of the Department of Health (DOH) Paulyn Jean B. Rosell-Ubial (now the Secretary of Health), the ban against aerial spraying and adoption of ground spraying would not eliminate the hazards of the pesticides to which workers and residents within and around banana plantations might be exposed.
143 Tussman and tenBroek.
144 David M. Treiman, Equal Protection and Fundamental Rights - A Judicial Shell Game, 15 Tulsa L. J. 183, 191 (1979), available at: http://digitalcommons.law.utulsa.edu/cgi/reviewcontent.cgi?article=1510&context=/tlr, last accessed August 16, 2016.
145Rollo, (G.R. No. 189185; Vol. II), pp. 1257-1258; According to respondents' witness, Mr. Richard Billington, the drift at the edge of an area sprayed from the air results to approximately half of the corresponding value for ground application. This observation was based on the AgDrift Model, developed under a Cooperative Research and Development Agreement (CRADA) between the Spray Drift Task Force (SDTF) of the US Environmental Protection Agency (EPA) and the US Department of Agriculture - Agricultural Research Service (USDA-ARS).
146 Tussman and tenBroek, supra at 133.
147Rollo, G.R. No. 189185, Vol. I, pp. 102-103.
148 The rational basis approach partakes of two (2) forms: the deferential and the nondeferential rational relation test. In deferential rational basis test, the government action is always deemed constitutional if it has any conceivable valid purpose and if the means chosen are arguably rational. In contrast, the nondeferential rational basis test requires a determination that the government action serves an actual valid interest, hence (1) the government actually has a valid purpose and (2) the means chosen are demonstrably rational (effective), see Galloway, Russell W., Means-End Scrutiny in American Constitutional Law, Loyola of Los Angeles Review, Vol. 21, pp. 451-452, available at http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=l557&context=llr, last accessed August 16, 2016.
149 Section 3(e).
150Cabell v. Chavez-Salido, 454 U.S. 432 (1982), 70 L.Ed.2d 677.
151 Treiman, supra at 148.
152Rollo (G.R. No. 189185; Vol. III), pp. 1564-1565.
153 Id. at 1549.
154 Andrew Jordan and Timothy O'Riordan, "The Precautionary Principle: A Legal and Policy History" in The precautionary principle: Protecting Public Health, The Environment and The Future of Our Children, p. 33, available at http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf, last accessed August 16, 2016.
155 UNESCO. The Precautionary Principle, World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), p. 7, available at http://www.eubios.info/UNESCO/precprin.pdf, last accessed August 16, 2016.
156 Section 1, Rule 20, Part V.
157 Annotation to the Rules of Procedure on Environmental Cases, p. 158.
158 IUCN, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, available at http://www.cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf. Last accessed August 16, 2016.
159 Supra at 157.
160 Andrew Stirling and Joel Tickner, "Implementing Precaution: Assessment and Application Tools for Health and Environmental Decision-Making" in The Precautionary Principle: Protecting Public Health, The Environment and The Future of Our Children, p. 182, available at http://www.euro.who.int/_data/assets/pdf_file/0003/91173/E83079.pdf Last accessed August 16, 2016.
161 Supra note 157, at 16.
162 European Commission Communication from the Commission on the Precautionary Principle, available at http://eur-lex.eurorja.eu/legal-content/EN/TXT/?uri=URlSERV%3A132042. Last accessed August 16, 2016.
163 Supra note 157, at 29.
164 Supra note 153.
165 Position Paper of the Department of Health-Center for Health Development, Davao Region, On the Issue of Aerial Spraying in Banana Plantations Within the Jurisdiction of Davao City in G.R. No. 189185, Vol. III, pp. 1566-1567.
166United States v. Salaveria, 39 Phil. 102, 111 (1918).
167 Supra note 103, at 111.
168 G.R. No. 177807, October 11, 2011, 658 SCRA 853, 865-866.
169 Supra note 166, at 112.
170 24 Phil. 165, 169 (1913).
171De la Cruz v. Paras, G.R. No. L-42571-72, July 25, 1983, 123 SCRA 569, 578.
172City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 353.
173White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 417, 442 citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22 SCRA 424, 441.
174City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308, 327.
175Legaspi v. City of Cebu, G.R. No. 159692, December 10, 2013, 711 SCRA 771, 785.
176 Creating the Fertilizer and Pesticide Authority and Abolishing the Fertilizer Industry Authority.
177 The eighth Whereas clause.
178 Section 1, P.D. No. 1144.
179 The delivery of basic services is devolved to the local government units. Sections 22 and 458 of the Local Government Code provides for an exhaustive enumeration of the tunctions and duties devolved to the local government units.
180Batangas CATV v. Court of Appeals, G.R. No. 138810, September 29, 2004, 439 SCRA 326, 340.
181 Id.
182 Id. at 341-342.
183 G.R. No. 118127, April 12, 2005, 455 SCRA 308, 327.
184 Id.
185 Issued on August 3, 2009.
186 The memorandum provides for the safety procedures in pesticide spraying, (Paragraph. II [1]), safety handling (Paragraph II [2]) and post-application (Paragraph II [3]), including the qualification of applicators ((Paragraph III), storing of fungicides (Paragraph IV), safety and equipment of plantation personnel (Paragraph V).
187 Paragraph II (1).
188 Paragraph II (2).
189 Paragraph II (3).
190 Paragraph III.
191 Paragraph IV.
192 Paragraph V.
193 Paragraph II(1)(b).
194 Paragraph II(3)(d)(8).
195 Section 3(e).
LEONEN, J.:
Endnotes:
1 LOC. GOV. CODE, sec. 16 provides:
chanRoblesvirtualLawlibrarySECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
2 CONST., art. II, sec. 25 provides:
chanRoblesvirtualLawlibrarySECTION 25. The State shall ensure the autonomy of local governments.
3 Pres. Decree No. 1144 (1977), Creating the Fertilizer and Pesticide Authority and Abolishing the Fertilizer Industry Authority.
4 Pres. Decree No. 1144 (1977), sec. 6 provides:
chanRoblesvirtualLawlibrarySECTION 6. Powers and Functions. — The FPA shall have jurisdiction, on over all existing handlers of pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the following powers and functions:ChanRoblesVirtualawlibraryI. Common to Fertilizers, Pesticides and other Agricultural Chemicals5 CONST., art. II, sec. 16 provides:II. Fertilizers
- To conduct an information campaign regarding the safe and effective use of these products;
- To promote and coordinate all fertilizer and pesticides research in cooperation with the Philippine Council for Agriculture and Resources Research and other appropriate agencies to ensure scientific pest control in the public interest, safety in the use and handling of pesticides, higher standards and quality of products and better application methods;
- To call upon any department, bureau, office, agency or instrumentality of the government, including government-owned or controlled corporations, or any officer or employee thereof and on the private sector, for such information or assistance as it may need in the exercise of its powers and in the performance of its functions and duties;
- To promulgate rules and regulations for the registration and licensing of handlers of these products, collect fees pertaining thereto, as well as the renewal, suspension, revocation, or cancellation of such registration or licenses and such other rules and regulations as may be necessary to implement this Decree;
- To establish and impose appropriate penalties on handlers of these products for violations of any rules and regulations established by the FPA;
- To institute proceedings against any person violating any provisions of this Decree and/or such rules and regulations as may be promulgated to implement the provisions of this Decree after due notice and hearing;
- To delegate such selected privileges, powers or authority as may be allowed by law to corporation, cooperatives, associations or individuals as may presently exist or be organized to assist the FPA in carrying out its functions, and;
- To do any and all acts not contrary to law or existing decrees and regulations as may be necessary to carry out the functions of the FPA.
III. Pesticides and Other Agricultural Chemicals
- To make a continuous assessment of the fertilizer supply and demand situation, both domestic and worldwide;
- To establish and enforce sales quotas, production schedules, distributions areas and such other marketing regulations as may be necessary to assure market stability and viable operations in the industry;
- To determine and set the volume and prices both wholesale and retail; of fertilizer and fertilizer inputs;
- To establish and implement regulations governing the import and export of fertilizer and fertilizer inputs, and when necessary, to itself import and/or export such items, including the negotiating and contracting of such imports and exports;
- To import fertilizer and fertilizer inputs exempt from customs duties, compensating and sales taxes and all other taxes, and to purchase naptha locally free from specific taxes and the corresponding duty on the imported crude, and to sell or convey such fertilizer or fertilizer input to any individual association, or corporation likewise exempt from the payment of customs duties and all other taxes;
- To control and regulate all marketing companies, whether importer, indentor, wholesaler or retailer; by controlling and regulating prices, terms, mark-ups, distribution channels, promotion, storage and other marketing factors in the domestic fertilizer market;
- To regulate and control quality of the different grades of fertilizer and to set new grades when necessary;
- To control and regulate all aspects of domestic fertilizer production, including the utilization of idle capacity and the orderly expansion of the industry and to compel the utilization of unused or underutilized capacities of fertilizer companies and to direct any improvements, modifications or repairs as may be necessary to accomplish this;
- To approve or to reject the establishment of new fertilizer or fertilizer input plants and the expansion or contraction of existing capacities;
- To obtain complete assess to all pertinent information on the operations of the industry, including audited and/or unaudited financial statements, marketing, production, and inventory data;
- To control and assist in the financing of the importation of fertilizer and fertilizers inputs of production, of inventory and working capital, and of the expansion of the industry;
- To do all such things as may be necessary to maintain an adequate supply of fertilizers to the domestic market at reasonable prices while maintaining the long-term viability of the industry.
- To determine specific uses or manners of use for each pesticide or pesticide formulation;
- To establish and enforce tolerance levels and good agricultural practices for use of pesticides in raw agricultural commodities;
- To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific areas or during certain periods upon evidence that the pesticide is an imminent hazard, has caused, or is causing widespread serious damage to crops, fish or livestock, or to public health and the environment;
- To prevent the importation of agricultural commodities containing pesticide residues above the accepted tolerance levels and to regulate the exportation of agricultural products containing pesticide residue above accepted tolerance levels;
- To inspect the establishment and premises of pesticide handlers to insure that industrial health and safety rules and anti-pollution regulations are followed;
- To enter and inspect farmers' fields to ensure that only the recommended pesticides are used in specific crops in accordance with good agricultural practice;
- To require if and when necessary, of every handler of these products, the submission to the FPA of a report stating the quantity, value of each kind of product exported, imported, manufactured, produced, formulated, repacked, stored, delivered, distributed, or sold;
- Should there by any extraordinary and unreasonable increases in prices or a severe shortage in supply of pesticides, or imminent dangers or either occurrences, the FPA is empowered to impose such controls as may be necessary in the public interest, including but not limited to such restrictions and controls as the imposition of price ceilings, controls on inventories, distribution and transport, and tax-free importations of such pesticides or raw materials thereof as may be in short supply.
chanRoblesvirtualLawlibrarySECTION 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
6 CONST., art. III, sec. 1 provides:
chanRoblesvirtualLawlibrarySECTION 1. No person shall be deprived of life, liberty, or property without due process of laws.
7 United Nations Framework Convention on Climate Change, art. 3(3).