EN BANC
G.R. No. 209271, December 08, 2015
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the reversal of the Decision1 dated May 17, 2013 and Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which permanently enjoined the conduct of field trials for genetically modified eggplant.
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i) enjoining public respondents BPI and FPA of the DA from processing for field testing, and registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt talong for field trials as their very presence pose significant and irreparable risks to human health and the environment.On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-a ordering them to make a verified return within a non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:(i) Respondents to submit to and undergo the process of environmental impact statement system under the Environmental Management Bureau;c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their respective returns and explain why they should not be judicially sanctioned for violating or threatening to violate or allowing the violation of the above-enumerated laws, principles, and international principle and standards, or committing acts, which would result into an environmental damage of such magnitude as to prejudice the life, health, or property of petitioners in particular and of the Filipino people in general.
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report, regulatory compliance reports and supporting documents, and other material particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public consultation, public participation, and consent of the local government units in the barangays, municipalities, and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08, defining or incorporating an independent, transparent, and comprehensive scientific and socio-economic risk assessment, public information, consultation, and participation, and providing for their effective implementation, in accord with international safety standards; and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced nationwide public information on the nature of Bt talong and Bt talong field trial, and a survey of social acceptability of the same.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be violating the abovementioned laws, principles, and international standards; and recommend to Congress curative legislations to effectuate such order.18ChanRoblesVirtualawlibrary
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case. The respondents are DIRECTED to:chanRoblesvirtualLawlibraryThe CA found that existing regulations issued by the DA and the Department of Science and Technology (DOST) are insufficient to guarantee the safety of the environment and health of the people. Concurring with Dr. Malayang's view that the government must exercise precaution "under the realm of public policy" and beyond scientific debate, the appellate court noted the possible irreversible effects of the field trials and the introduction of Bt talong to the market.
(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing judgment of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic (living) and non-biotic things interacting as a living community in a particular space and time. In the ecosystem are found specific and particular biotic and non-biotic entities which depend on each other for the biotic entities to survive and maintain life. A critical element for biotic entities to maintain life would be that their populations are in a proper and natural proportion to others so that, in the given limits of available non-biotic entities in the ecosystem, no one population overwhelms another. In the case of the Philippines, it is considered as one of the richest countries in terms of biodiversity. It has so many plants and animals. It also has many kinds of other living things than many countries in the world. We do not fully know how all these living things or creatures interact among themselves. But, for sure, there is a perfect and sound balance of our biodiversity as created or brought about by God out of His infinite and absolute wisdom. In other words, every living creature has been in existence or has come into being for a purpose. So, we humans are not supposed to tamper with any one element in this swirl of interrelationships among living things in our ecosystem. Now, introducing a genetically modified plant in our intricate world of plants by humans certainly appears to be an ecologically imbalancing act. The damage that it will cause may be irreparable and irreversible.
At this point, it is significant to note that during the hearing conducted by this Court on November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida Cariño (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in admitting that bt talong is an altered plant. x x x
x x x x
Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its natural order which is meant to eliminate one feeder (the borer) in order to give undue advantage to another feeder (the humans). The genetic transformation is one designed to make bt talong toxic to its pests (the targeted organisms). In effect, bt talong kills its targeted organisms. Consequently, the testing or introduction of bt talong into the Philippines, by its nature and intent, is a grave and present danger to (and an assault on) the Filipinos' constitutional right to a balanced ecology because, in any book and by any yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and deliberate tampering of a naturally ordained feed-feeder relationship in our environment. It destroys the balance of our biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the whole constitutional right of our people (as legally and logically construed) is violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of it actually causing acute or chronic harm to any or a number of ostensibly identifiable perms, on the other hand, there is correspondingly no factual evidence either of it not causing harm to anyone. However, in a study published on September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by Professor Gilles-Eric Seralini from the University of Caen and backed by the France-based Committee of Independent Research and Information on Genetic Engineering came up with a finding that rats fed with Roundup-tolerant genetically modified corn for two years developed cancers, tumors and multiple organ damage. The seven expert witnesses who testified in this Court in the hearing conducted on November 20, 2012 were duly confronted with this finding and they were not able to convincingly rebut it. That is why we, in deciding this case, applied the precautionary principle in granting the petition filed in the case at bench.
Prescinding from the foregoing premises, therefore, because one conjunct right in the whole Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually uncertain, the entire constitutional right of the Filipino people to a balanced and healthful ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of mandamus is justified and warranted.28 (Additional Emphasis supplied.)
G.R. No. 209276I
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT AND ACADEMIC.II
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL QUESTIONS.
- IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE COURT OF APPEALS "RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS WITHOUT JURISDICTION TO DO SO.
- WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING THE STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.
III
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.IV
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.V
THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013.VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF RESPONDENTS.
- THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ARE PROTECTED AND RESPECTED.
- THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND PROPERTY OF INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.
- THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF EVIDENCE TO PROVE THEIR CLAIM.
VII
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS AGAINST PETITIONER ISAAA.VIII
THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.29ChanRoblesVirtualawlibrary
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial and documentary evidence of respondents, taken together, do not amount to "scientifically plausible" evidence of threats of serious and irreversible damage to the environment. In fact, since BPI started regulating GM crops in 2002, they have monitored 171 field trials all over the Philippines and said agency has not observed any adverse environmental effect caused by said field trials. Plainly, respondents failed to show proof of "specific facts" of environmental damage of the magnitude contemplated under the Rules of Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.
118. Since the technology's inception 50 years ago, studies have shown that genetically modified crops, including Bt talong, significantly reduce the use of pesticides by farmers in growing eggplants, lessening pesticide poisoning to humans. 119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-resistant genetically modified crops. Moreover, that insect-resistant genetically modified crops significantly reduce the use of pesticides in growing plants thus lessening pesticide poisoning in humans, reducing pesticide load in the environment and encouraging more biodiversity in farms. 120. Global warming is likewise reduced as more crops can be grown. 121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton industry by largely controlling Lepidopteran pests. To date, it had no significant impact on the invertebrate community studied. 122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory heteropterans and, therefore, cultivation of Bt cotton may provide an opportunity for conservation of these predators in cotton ecosystems by reducing insecticide use. 123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively affect monarch butterflies. 124. The field trials will not cause "contamination" as feared by the petitioners because flight distance of the pollinators is a deterrent to cross pollination. Studies reveal that there can be no cross pollination more than a fifty (50) meter distance. x x x x 135. There is a 50 year history of safe use and consumption of agricultural products sprayed with commercial Bt microbial pesticides and a 14 year history of safe consumption of food and feed derived from Bt crops. x x x x 140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by [respondents] was dismissed as "scientifically flawed", thus providing no plausible basis to the proposition that Bt talong is dangerous to public health. 141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the ASEAN region to implement a regulatory system for transgenic crops (which includes DAO 08-[2]002). Accordingly, the said regulatory system has also served as a model for other countries in the region and other developing countries outside of Asia.
As to environmental effects, respondents said these include the potential for living modified organisms, such as Bt talong tested in the field or released into the environment, to contaminate non-GM traditional varieties and other wild eggplant relatives and turn them into novel pests, outcompete and replace their wild relatives, increase dependence on pesticides, or spread their introduced genes to weedy relatives, potentially creating superweeds, and kill beneficial insects.
Studies/interpretation by Conclusion/interpretation Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. For Bt modified crops (like Bt talong), there is concern over its potential Lopez-Revilla, and RI Vazquez-Padron allergenicity. CrylAcc (the gene inserted in Bt talong) protoxin is a potent immunogen (triggers immune response); the protoxin is immunogenic by both the intraperitoneal (injected) and intragastric (ingested) route; the immune response to the protoxin is both systemic and mucosal; and CrylAcc protoxin binds to surface proteins in the mouse small intestine. These suggest that extreme caution is required in the use of CrylAcc in food crops. Prof. Eric-Gilles Seralini His key findings showed statistical significant differences between group of animals fed GM and non-GM eggplant that raise food safety concerns and warrant further investigation. Dr. Romeo Quijano & Dr. Wency Kiat, Jr. Interpreting Prof. Seralini's findings, the altered condition of rats symptomatically indicate hazards for human health. Prof. David A. Andow The MAHYCO dossier is inadequate to support the needed environmental risk assessment; MAHYCO's food safety assessment does not comply with international standards; and that MAHYCO relied on dubious scientific assumptions and disregarded real environmental threats.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field trial is isolated, restricted and that "each experiment per site per season consists of a maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080 sq. meters,"34 respondents emphasize that as shown by the above, contamination knows no size and boundaries in an open environment.
What happened Impact How did it occur During 2006 and 2007, traces of three varieties of unapproved genetically modified rice owned by Bayer Crop Science were found in US rice exports in over 30 countries worldwide. In July 2011, Bayer eventually agreed to a $750m US dollar settlement resolving claims with about 11,000 US farmers for market losses and clean-up costs.
The total costs to the rice industry are likely to have been over $1bn worldwide. Field trials were conducted between the mid-1990s and early 2000s. The US Department of Agriculture (USDA) reported these field trials were the likely sources of the contamination between the modified rice and conventional varieties. However, it was unable to conclude [if it] was caused by gene flow (cross pollination) or mechanical mixing. In 2009, unauthorised GElinseed (also known as 'flax') produced by a public research institution was discovered in food in several EU countries, having been imported from Canada. Canada lost exports to its main European market worth hundreds of millions of dollars and non-GElinseed farmers have faced huge costs and market losses. In the late 1980s a public research institution, the Crop Development Centre in Saskatoon, Saskat-chewan, developed a GElinseed variety FP96—believed to be the origin of the contamination. During 2004, the Thai government found that papaya samples from 85 farms were genetically modified. The contamination continued into 2006 and it is likely that the GE contamination reached the food chain. Exports of papaya to Europe have been hit because of fears that contamination could have spread. The Thai government said it was taking action to destroy the contaminated trees. GEpapaya is not grown commercially in Thailand, so it was clear that the contamination originated from the government station experimentally breeding GE papaya trees. Tests that showed that one third of papaya orchards tested in the eastern province of Rayong and the north-eastern provinces of Mahasarakham, Chaiyaphum and Kalasinhad GE- contaminated papaya seeds in July 2005. The owners said that a research station gave them the seeds. In the US in 2002, seeds from a GEmaize pharma-crop containing a pig vaccine grew independently among normal soybean crops. Prodigene, the company responsible, was fined $3m for tainting half a million bushels of soya bean with a trial vaccine used to prevent stomach upsets in piglets. Prodigene agreed to pay a fine of $250,000 and to repay the government for the cost of incinerating the soya bean that had been contaminated with genetically altered corn. Seeds from the GEmaize crop sprouted voluntarily in the following season. In 2005, Greenpeace discovered that GE rice seeds had been illegally sold in Hubei, China. Then, in 2006, GE rice event Bt63 was found in baby food sold in Beijing, Guangzhou and Hong Kong. In late 2006, GE rice Bt63 was found to be contaminating exports in Austria, France, the UK and Germany. In 2007 it was again found in EU imports to Cyprus, Germany, Greece, Italy and Sweden. The European Commission adopted emergency measures (on 15 August 2008) to require compulsory certification for the imports of Chinese rice products that could contain the unauthorised GE rice Bt63.
The Chinese government took several measures to try to stop the contamination, which included punishing seed companies, confiscating GEseed, destroying GErice grown in the field and tightening control over the food chain.
The source of the contamination appears to have been the result of illegal planting of GEseeds. Seed companies in China found to have sold GErice hybrid seed to farmers operated directly under the university developing GM rice. It has been reported that the key scientist sat on the board of one GEseed company. In 2005, the European Commission announced that illegal Bt10 GEmaize produced by GEseed company Syngenta had entered the European food chain. The GEmaize Bt10 contains a marker gene that codes for the widely-used antibiotic ampicillin, while the Bt11 does not. According to the international Codex Alimentarius Guideline for Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA:Plants: 'Antibiotic resistance genes used in food production that encode resistance to clinically used antibiotics should not be present in foods' because it increases the risk of antibiotic resistance in the population. The European Commission blocked US grain import unless they could be guaranteed free of Bt10. The USDA fined Syngenta $375,000. There are no figures for the wider costs. The contamination arose because Syngenta's quality control procedures did not differentiate between Bt10 and its sister commercial line, Bt11. As a result, the experimental and substantially different Bt10 line was mistakenly used in breeding. The error was detected four years later when one of the seed companies developing Bt11 varieties adopted more sophisticated analytical techniques.
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering that this was not formally offered as evidence by respondents. Hence, the same may not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of Court; Heirs of Pedro Pasag v. Spouses Parocha, supra)Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid requirements under Section 8 of DAO 08-2002 already takes into consideration any and all significant risks not only to the environment but also to human health. The requirements under Sections 26 and 27 of the Local Government Code are also inapplicable because the field testing is not among the six environmentally sensitive activities mentioned therein; the public consultations and prior local government unit (LGU) approval, were nevertheless complied with. Moreover, the field testing is an exercise of academic freedom protected by the Constitution, the possibility of Bt talong's commercialization in the future is but incidental to, and fruit of the experiment.
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the study was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and conclusion of this study to Bt talong is grossly erroneous and calculated to mislead and deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-Fierros, et al., which was published in an article entitled A Review of the Food Safety of Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The reason is because of endotoxin contamination in the preparation of the CrylAc protein. Further, when purified Cry protein was injected to mice through intra-gastric administration, there was no impact on the immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential health risks from human consumption of foods derived from Bt crops can be questioned because the doses tested in mice is irrelevant to human dietary exposure, i.e., the doses given were "far in excess of potential human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any weight and consideration because his sworn statement was not admitted in evidence by the Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed by Seralini's statistical analysis as examples of random biological variation that occurs when many measurements are made on test animals, and which have no biological significance. Hence, there are no food safety concerns. Further, petitioner ISAAA presented in evidence the findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected Seralini's findings because the same were based on questionable statistical procedure employed in maize in 2007.
In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier decision approving the safety of Bt eggplant notwithstanding the findings of Seralini's assessment. In effect, Seralini's findings and interpretation were rejected by the Indian regulatory agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not entitled to any weight and consideration because the Court of Appeals did not admit their sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed study, making their sworn statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A. Andow as the work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In truth, as Prof. David A. Andow indicated in the preface, the report was produced upon the request of Aruna Rodriguez, a known anti-GM campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the environment of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all over the country. He concluded, however, that the dossier is inadequate for ERA. This is perplexing considering this is the same gene that has been used in Bt cotton since 1996. Scores of environmental and food safety risk assessment studies have been conducted and there is wealth of information and experience on its safety. Various meta-analyses indicate that delaying the use of this already effective Bt brinjal for managing this devastating pest only ensures the continued use of frequent insecticide sprays with proven harm to human and animal health and the environment and loss of potential income of resource-poor small farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian regulatory body, GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on the recommendation of two expert committees which found the Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian regulatory agency.35ChanRoblesVirtualawlibrary
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the proponent submitted its application, petitioner BPI conducted a consultative meeting with the proponent to enlighten the latter about the requirements set out by DA AO No. 8.Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt talong field testing considering that its subject matter is not mass production for human consumption. The project entails only the planting of Bt eggplants and cultivation in a controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt talong will be commercialized and allowed for cultivation in the Philippines.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA AO No. 8 and found them to be sufficient in form and substance, to wit:First. The applications were in the proper format and contained all of the relevant information as required in Section 8 (A) (1) of DA AO No. 08.Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of DA AO No. 08, forwarded the complete documents to three (3) independent Scientific Technical Review Panel (STRP) members. Pending receipt of the risk assessment reports of the three STRP members, petitioner BPI conducted its own risk assessment.
Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated article has undergone satisfactory testing under contained conditions in the Philippines, (ii) technical dossier consisting of scientific literature and other scientific materials relied upon by the applicant showing that Bt talong will not pose any significant risks to human health and the environment, and (iii) copy of the proposed PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved by the majority of all the members of the respective Institutional Biosafety Committees (IBC), including at least one community representative, as required by Section 8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the risk assessment and risk management strategies of the applicant for field testing using the NCBP guidelines. The IBC shall determine if the data obtained under contained conditions provide sufficient basis to authorize the field testing of the regulated article. In making the determination, the IBC shall ensure that field testing does not pose any significant risks to human health and the environment. The IBC may, in its discretion, require the proponent to perform additional experiments under contained conditions before acting on the field testing proposal. The IBC shall either endorse the field testing proposal to the BPI or reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an applicant for field testing to establish an IBC in preparation for the field testing of a regulated article and whose membership has been approved by the BPI. Section 1 (L) of DA AO No. 08, requires that the IBC shall be composed of at least five (5) members, three (3) of whom shall be designated as "scientist-members" who shall possess scientific and technological knowledge and expertise sufficient to enable them to evaluate and monitor properly any work of the applicant relating to the field testing of a regulated article, and the other members are designated as "community representatives" who are in a position to represent the interest of the communities where the field testing is to be conducted.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three STRP members recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each concerned barangays and city/municipal halls of the localities having jurisdiction over its proposed field trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings and public seminars in order to provide public information and in order to give an opportunity to the public to raise their questions and/or concerns regarding the Bt talong field trials.36ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field trials having been terminated, the CA entertained a prohibited collateral attack on the sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA knew was highly improper, it nonetheless granted the petition for writ of kalikasan on the theory that "mere biosafety regulations" were insufficient to guarantee the safety of the environment and the health of the people.I.
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.II.
EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.III.
THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.IV.
THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
- Legal standing of respondents;
- Mootness;
- Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;
- Application of the law on environmental impact statement/assessment on projects involving the introduction and propagation of GMOs in the country;
- Evidence of damage or threat of damage to human health and the environment in two or more provinces, as a result of the Bt talong field trials;
- Neglect or unlawful omission committed by the public respondents in connection with the processing and evaluation of the applications for Bt talong field testing; and
- Application of the Precautionary Principle.
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.43 (Emphasis supplied.)The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental Cases which allows the filing of a citizen suit in environmental cases.44 The provision on citizen suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature," and aims to "further encourage the protection of the environment."45
The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public information sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field testing permit on certain grounds, to wit:
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (1) in quo warranto proceedings. x x x (Emphasis supplied)
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following grounds:Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious health and environmental adverse effects of the Bt talong field trials due to "inherent risks" associated with genetically modified crops and herbicides. They sought the immediate issuance of a TEPO to enjoin the processing for field testing and registering Bt talong as herbicidal product in the Philippines, stopping all pending field trials of Bt talong anywhere in the country, and ordering the uprooting of planted Bt talong in the field trial sites.
- Provision of false information in the Application to Field Test;
- Violation of SPS or biosafety rules and regulations or of any conditions specified in the permit;
- Failure to allow the inspection of the field testing site;
- Receipt by BPI of new information that the field testing of the regulated article poses significant risks to human health and the environment;
- Whether the regulated article was imported, misdeclaration of shipment; or
- Such other grounds as BPI may deem reasonable to prevent significant risks to human health and the environment.
Benefits of GM Foods
- An organism that has the desired characteristic is identified and the specific gene producing this characteristic is located and the DNA is cut off.
- The gene is then attached to a carrier in order to introduce the gene into the cells of the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.
- Along with the gene and carrier a 'promoter' is also added to ensure that the gene works adequately when it is introduced into the plant.
- The gene of interest together with carrier and promoter is then inserted into bacterium, and is allowed to reproduce to create many copies of the gene which are then transferred into the plant being modified.
- The plants are examined to ensure that they have the desired physical characteristic conferred by the new gene.
- The genetically modified plants are bred with conventional plants of the same variety to produce seed for further testing and possibly for future commercial use. The entire process from the initial gene selection to commercial production can take up to ten years or more.56
For PetitionersThe relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as senior science advisor on agricultural biotechnology in the US Department of State, and editor for plant physiology for McGraw-Hill Encyclopedia of Science and Technology.
In his review of agricultural biotechnology around the world, he has not encountered any verifiable report of a field trial of any GM crop that caused damage to the environment and to human health. This involves more than 25,000 field trials in 20 years with crops such as Bt eggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects covering a period of more than 25 years of research involving more than 500 independent research groups, show that consuming foods containing ingredients derived from GM crops is no riskier than consuming the same foods containing ingredients from conventional crops. The World Health Organization (WHO), American Medical Association, US National Academy of Sciences, European Food Safety Authority (EFSA) all have come to the same conclusion.
GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly done studies purportedly claiming negative effects, should be viewed with great caution and have been highly criticized for their veracity by the overwhelming majority of highly respected scientists. Many hundreds of studies show no harmful effects. To date, not a single rigorous study of GM foods in animals has revealed any adverse effect; not a single case of allergy, illness, cancer, or death have been shown to be associated with foods derived from GM crops, despite the fact that they have been consumed by Americans for 16 years.
Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an increase in insect diversity and abundance and a decrease in crop damaging insects not only in Bt crop fields but also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security worldwide, protect against devastating crop losses and famine, improve nutrition, and some GM crop techniques help combat climate change.89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University, Forest Research Institute now Ecosystems Research and Development Bureau of DENR and the Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also in Bt eggplant has been found safe by many food and environmental safety regulatory agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan and EU.
Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have been reported. No report of adverse effects of Bt crop field trial exists. All claims of adverse health and environmental effects of Bt crops has not been scientifically validated. The yearly expansion of GM crop areas in both the developing and industrialized countries is an attestation of the preference of farmers and the economic benefits that accrue to them.
GM crops have positive environmental impact. Currently commercialized GM crops have reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use of pesticides, and also increased farmer incomes.90
DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology, Osaka University, Japan, and Intellectual Property Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA. Director, and Research Associate Professor, National Institute of Molecular Biology and Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems; former Executive Director, Philippine Council for Industry, Energy and Emerging Technology Research and Development, DOST; former Chair, Biosafety Committee, DOST; and was a Member of the Institutional Biosafety Committees of UPLB and International Rice Research Institute (IRRI); and was extensively involved in the isolation, bioassay or efficacy testing and development of Bt as microbial insecticides for the control of Asian corn borer and mosquito larvae at BIOTECH.
The contained field trial experiments, among others, were designed to address concerns on cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial organisms, and development of insect resistance. To prevent cross-pollination, an isolation distance of 200 meters from other areas where eggplants are grown or wild relatives are present, was observed, and with five (5) rows of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was not mentioned is the viability of pollen after it was shed and travelled at a certain distance. Numerous literatures have shown that isolation distances much less than 200 meters is sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted that cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable Research and Development Center (AVRDC) indicated that eggplants produce perfect flowers which may be cross-pollinated but self-pollination is more common, the extent of natural crossing depends upon insect activity and this can be avoided by isolating each variety by 20 meters or with another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters distance was found sufficient for pure seed production in India (the same recommendation by Chen [2001] of AVRDC foundation for seed production purity standards); field studies in 2 locations in India have shown that at a distance beyond 30 meters no more outcrossing could be detected. Taking all these data into account, the 48% outcrossing being raised by petitioners is most likely for adjacent plants and therefore not a valid argument for the on-going field trials.
The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of insect pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that the gut physiology of these insects is very different from caterpillars, and not all caterpillars are affected by it. There is a significant number of literature on Bt protein's selectivity and specificity.
As to the development of insect resistance, this is not possible during the multi-location field trials for Bt talong because of low selection pressure and limited exposure of the insect pest to Bt talong. Insect resistance is not unique to GM crops as it is a commonly observed biological reaction of insect pests to control measures like insecticides. In the event Bt talong is approved for commercialization and will be widely used by fanners, this concern could be addressed by insect resistance management (IRM); an IRM strategy should be required prior to the commercial release of Bt talong.
There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed so that scientists and researchers will be able to generate valuable data and information which will be helpful in making informed decisions regarding the usefulness of the technology.91
For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB Philosophy, UP Diliman; former Undersecretary of Environment and Natural Resources; served as Environmental Science representative in the National Biosafety Committee of the Philippines and participated in the drafting of the Philippines Biosafety Framework; and student, lecturer and advocate of biodiversity, food security, biosafety and environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against being used for academic research) in the Philippines on the following grounds: (a) how they might contaminate the indigenous genetic resources of the country; (b) how they may cause an imbalance of predator-prey relationships in ecosystems, so that certain species might dominate ecological niches and erode their biodiversity and ecological stability; (c) how they may erode the ability of farmers to control their genetic resources to sustain their cropping systems; and (d) how much are present biosafety protocols able to safeguard the long-term ecological and economic interests of the Philippines as a particularly biodiversity-rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity is its long-term equity to advances in biotechnology, the most robust measures must be taken so that such resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of standards for determining the level of robustness of biosafety measures and protocols that would be acceptable in the particular case of the Philippines; include required scoping and internal and external validity requirements of impact and safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop biosafety measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the protocol with the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its considerations being restricted only to specific professionals and sectors in the country; biosafety must be based on an enactment of Congress and open to challenge and adjudication against international laws; provisions must be made to make it a crime against humanity to recklessly erode and weaken genetic resources of our people.92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in more than a hundred trainings and seminars, both local and abroad; served as member in international agricultural assessment sponsored by Food and Agriculture Organization (FAO), United Nations Environment Program (UNEP), WHO, and the World Bank; worked on a project for development of resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served as researcher and later Associate Professor of Environmental Management of the UP Open University.
Based on her studies and extensive experience, the Bt talong field testing poses the following risks or hazards: (a) While natural Bt sprays used in organic farming have little effect on non-target organisms because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic when processed and reduced in the gut of certain (targeted) species of insect larvae, in contrast, Bt plants contain an artificial, truncated Bt gene and less processing is required to generate the toxin because the toxin is already in its active form. It is therefore less selective, and may harm non-target insects that do not have the enzymes to process the pro-toxin, as well as the pests for which it is intended; (b) Bt proteins from natural Bt sprays degrade relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within several days to two weeks after application. In Bt crops, however, the Bt toxin is produced by the internal system of the plants thus non-degradable by mere exposure to sunlight and generated throughout the entire lifespan of the plant; (c) Bt talong can also affect the environment by harming important or beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like other Bt crops, could be harmful to non-target organisms if they consume the toxin directly in pollen or plant debris. This could cause harm to ecosystems by reducing the numbers of important species, or reducing the numbers of beneficial organisms that would naturally help control the pest species; (c) The evolution of resistance to Bt crops is a real risk and is treated as such in ecological science throughout the world. If enough individuals become resistant then the pest control fails; the pest becomes abundant and affects crop yield. Granting the pest control practice is successful, it may also simply swap one pest for another, a phenomenon known as secondary pest outbreak. Several studies have shown that other pest insects are filling the void left by the absence of the one (or very few) insect pests that Bt crops target, and this is now the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt talong will eventually lead to contamination of non-genetically modified eggplant varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen trap area in the confined field testing set by BPI is not sufficient. And once contamination occurs, genetic cleanup of eggplant or any other plant is impossible. Moreover, intra-specific gene flow from Bt talong to other varieties and populations of eggplants should be examined, as cultivated eggplant (Solanum melongena) can cross breed with feral populations of S. melongena, and it is possible that cultivated varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative species needs to be evaluated carefully and the consequences of any hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision for moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota also published an 84-pages report on the Environmental Risk Assessment of Bt Brinjal, and among his conclusions is that several environmental risks were not considered and nearly all the risk assessment done were inadequate. He concluded that until the risks were understood or managed, there seems to be little reason to approve Bt Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University; Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the Council of Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive Committee of the state council of Biotechnology, Government of West Bengal and Chairman of the Biotechnology group of the state council of Science and Technology, Government of West Bengal; Visiting Professor of the National Institute of Science, Technology and Development (CSIR-NISTAD); citizen of India and resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have unintended consequences, which are in direct opposition to what was intended. The difference in controlled laboratory condition and standards, and real life open field level micro and macro-environment pushes the advantage towards the target and non-target living system, with time. The pest resistance to Bt toxin and development of herbicide tolerance (HT) in weeds is just a matter of time. The decade long experience in Bt and Ht genes amply proves this point. If we ignore this now - we are manufacturing a global environmental disaster - which will be a crime against humanity. There is no way to recall these GMO from the environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will help the monopoly agribusiness and the expenses of monopolistic competition or cooperative organic farming. Hot climate and rich biodiversity is detrimental towards the effectiveness of Bt constructs, and helpful towards unintended gene flow. Moreover, the genetic manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided by focused laboratory based screen of traits - rather than the host or the full natural product. The GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness. Before going ahead with spread of this technology, even in a batter form, the foremost task is to establish rigorous test and assessment procedures. There are excellent available tools of preteomics, transcriptomics, and metabolomics for detailed compositional analysis in our hand to do this. Please ask, why they are not being employed? In fact, there is not a single centre to test GM products on behalf of the corporate GM Agribusiness house. Thus, low level, long term toxicity of GM foods are yet to be tested. I believe the time has come to establish a standardization facility to carry out such test facility in any country before giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
Dr. Cariño:chanRoblesvirtualLawlibraryAs shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of contention between the expert witnesses, i.e., the safety of Bt talong to humans and the environment. Evidently, their opinions are based on contrasting findings in hundreds of scientific studies conducted from the time Bt technology was deployed in crop farming. These divergent views of local scientists reflect the continuing international debate on GMOs and the varying degrees of acceptance of GM technology by states especially the developed countries (USA, EU, Japan, China, Australia, etc.).
x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not supposed to be consumed at the moment still under field trial, so it is not supposed to be eaten at the moment. It has not been released for food nor for feed and so in the context of a confined field test, it has supposed to have it out in the field in a very controlled manner and any produce that comes out from that area is supposed to be destroyed or kept from further safety and analysis only.
Chairperson:chanRoblesvirtualLawlibrary
So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?
Dr. Cariño:chanRoblesvirtualLawlibrary
BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually published on relative safety of CrylAcc protein and it is actually considered as an additional protein and the various reviews can be seen in the OECD Digest of risk assessments on CrylAcc protein. Alternatively, if you are looking at the possibility of harm coming from the introduced protein as yet, we have not done a full blown assessment of it as of the moment. But we look at the protein sequence and with a comparison of its sequence with other sequences in the data basis to see if it is similar to this amino acid sequence of other known toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that it is not closely related to any of the known toxins that are found into its system.
Chairperson:chanRoblesvirtualLawlibrary
So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?
Dr. Cariño:chanRoblesvirtualLawlibrary
Right now it is not meant to be consumed by human at this point. Let me just clarify one point. When any GM material is supposed to be introduced for food and for feed and before it is actually utilized for life skill production, it goes through several steps. The first step is actually the "lab", laboratory work and it is actually tested in this clean-houses, rolled-out confined limited field test and then it goes to butyl abyss of field tests where it is like generating more and more informations. We are still early on in this pathway, so we are only in the confined field test and, at the moment, the thing is that it is still being tested. The focus is on its efficacy after doing a preliminary assessment of the possible pathological and ecological effect, and that is the pathway that has been recommended by so many academics as well as scientific institutions as well. And, that has been a tract followed by almost all the genetically modified crops that is being introduced in the market today, but at the moment BT Talong is not yet a commodity. It is not yet being evaluated as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
So, no one in this country has yet eaten this BT Talong?
Dr. Cariño:chanRoblesvirtualLawlibrary
No, it has not been eaten, as far as I know. Even in India it has not been consumed by human beings because it has not been introduced as a commodity.
Chairperson:chanRoblesvirtualLawlibrary
But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of course?
Dr. Cariño:chanRoblesvirtualLawlibrary
If it passes the safety assessments. That there is always a peak condition that, if it would not to be evaluated in a step of the way much like to evaluate any new product that is coming into the market evaluation, goes on a step-by-step and at least day-to-day basis.
Dr. Davies:chanRoblesvirtualLawlibrary
Your Honor, may I interject, may I suggest with your permission? I would just like to make a little bit of explanation.
Chairperson:chanRoblesvirtualLawlibrary
Proceed.
Dr. Davies:chanRoblesvirtualLawlibrary
I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I think of the name BT toxin is very fortunate. It is really a protein. A protein is an essential constituent of life. It is an essential constituent of our food. In the human body, and in the body of other animals, this protein is under the same as any other protein in food. It has no effect on the human body. This has been shown for many, many years, knowing BT Talong but BT has been a constituent of "maize" in commercial production for 16 years.
x x x x
Dr. Davies:chanRoblesvirtualLawlibrary
x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in corn products and by any other people who in[g]est American maize corn products x x x. There is not a single case of illness or toxicity or allergenicity that can be or that has been associated with this protein and, therefore, any food containing this protein has been declared by authorities in all the countries that was mentioned by my colleagues, including the European Union and the United States x x x to be as safe as any food derived from the same plant species not containing this gene. I hope that explains a little bit about what it is.
Chairperson:chanRoblesvirtualLawlibrary
Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that Monsanto's genetically modified corn is linked to cancer?
Dr. Davies:chanRoblesvirtualLawlibrary
Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work has been refuted by International committees of scientists...
x x x x
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake venoms. They are poisons, so whether it is protein or not that is not the question. So proteins obviously venoms and proteins and enzymes and they are poisons so protein can be a poison so that is now the point at all to be considered. The second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in human or in any other animal have not been tested. So that is true so we do not know direct consumption of this, because notice have been turned down, that is the objective fact. The third point is about the "American Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled, how do you know that? What is its effect? What is its toxicity? And, obviously, there are more than a hundred of papers showing and published in very good journals. I can give many references which have shown the detrimental effect of BT Toxin.
x x x x
Chairperson:chanRoblesvirtualLawlibrary
But before having this BT talong scheduled and allowed for field testing, is it not proper that it should be first determined whether this food product is really safe for eating or not?
Dr. Cariño:chanRoblesvirtualLawlibrary
There is an initial assessment that is generally done and according to the Codex Alimentarius of the WHO, the thing that you do at this early stage of development is to compare the sequence of the protein that is being introduced with published sequence of allergens, as well as toxicants and toxins. So that has been done. Then you have to look for instability under heat conditions because there is seldom do we heat grow eggplants, so is it stable under heating. Is it stable in the presence of digestive juices? And, if the answer is "yes", there is at least fair certainty, a fair assurance that it is likely to be safe but then you start thinking of what other component not present in the product, does this. For example, any product that we consume today has something that is bad for you, otherwise, you will not see it right now. Otherwise all the different herbivores will be eating it up, right? It will be extinct if it does not have anything to protect itself and, so, the thing is one, to quantify how much of that has changed when you lead the genetic modification. So "Talong" has been known to have Solanine and glycoalkaloids whose level well have to quantify. We have not done that yet. They have not submitted the data for that and this as secondary metabolize whose relative concentration will change depending on the environment to which you actually place the system.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You known that BT Cotton was introduced in India through the back door black market entry. During the field trial, some of those seeds were taken out and given to the farmers for commercial cultivation to black market. Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the company and they compelled the government that farmers wanted those things and there was high ... how they pressurized the government. Now, in case of BT cotton is one thing, but BT Eggplant is completely a different thing. That is why [the] Supreme Court in India has taken a very strong stand and, now, the parliamentary committee in India. The Supreme Court has also taken steps stand with the field trial. The first thing in field trial we had to see that whether there is a definite need of this kind of intervention, because the eggplant is a very common vegetable in this part of the world. There are so many hundreds of varieties here, these are the origins of these varieties of this kind of vegetable. It is cheap. It is available everyday. So why you go on changing if there is no crisis in cultivating the eggplants at present. Therefore, when you give it to this patented seeds technology, its prices will increase, lot of restrictions had to be deal. So, who will consume this high price eggplant. Many will be exported, that was why the proponents are looking into it. But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being given. There is a moratorium in India from the Supreme Court and from the government side on field trial of BT Brinjal. Now, if x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass, and who will guarantee that it will not go to the farmers?
x x x x
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of the planting .... of the existence of the genetically modified organism, for example, on insects, on the soil, on the air? And then I was thinking, does this have this particular protein that result[s] due to the genetic modification? Is it ... how is it expelled, for example how does it go into the environment? Or, on the other hand, how does it go inside and out of human system so that does it disintegrate or is it just there forever? I am very curious, sir. You have to educate me.
Dr. Davies:chanRoblesvirtualLawlibrary
x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein produced by each cell will be this BT protein. It does not get into the environment in general. A very small amount might be in the pollen or in the leaves that fall to the ground but it has been shown to be broken down in the soil by organisms so it will not exist in the environment. The only way that it is going to get into animals or insects is if they eat the fruit and this is what an insect that the "talong" fruit and shoot borer will be trying to. But, if it eats it, it reacts with its intestine so that they become toxic to the caterpillar but this is very specific to the digestive system of the caterpillar. It does not affect bees. It does not affect animals. It does not affect humans.
x x x x
Dr. Davies:chanRoblesvirtualLawlibrary
At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of these insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and the beetles but it will only affect if they try to eat the plant. Now, you are asking us if what is the effect on the environment. x x x I would like to cite x x x a recent paper published in the journal "Nature" x x x the most prestigious scientific journal in the world, x x x published in "Nature" in June this year and this is the result of a study of "insects" in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these scientists revolt that they show a marked increase in the abundance of three types of generalist arthropod predators (ladywings, lacewings and spiders) and a decrease in abundance of aphid pests associated with widespread adoption of Bt cotton. And they are referring to China and they conclude that such crops, x x x BT crops, can promote beneficial control services in agricultural landscapes. And, it also showed that these effects extend beyond the field. So, essentially x x x they found that there were more insects than in conventionally grown cotton and the insect diversity was greater surrounded than being detrimental to an agriculture ecosystem such BT cotton falls beneficial.
Dr. Chakraborty:chanRoblesvirtualLawlibrary
May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another news article, "Battlefield". One stream ecologist in United States itself, in a university, she has studied the effect of growing BT Corn in the field and what is the effect on the stream ecology, the west water, what is happening to other insects, insects in which it is getting that BT toxin will not go. Yes, she has found that stream ecology...
x x x x
Dr. Chakraborty:chanRoblesvirtualLawlibrary
Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in Illinois published that paper, published that article in PNAS or Proceedings of the National Academy of Sciences, a prestigious journal? Now, they have to desert her. She was abused, so her file was taken out. So people started e-mailing, threatening her. So "Nature" has to publish that. How dirty the field has become so they entitled it "Battelfield." If anybody produces any evidence that BT Toxin or GM Technology is doing any harm to the environment then it will be battered by the entire English lobby so there is worst the situation. But National Academy of Sciences in United States has taken a strong decision and, in last year, there were six publications that published where strong evidences are being produced about the environmental and ecological damage cause[d] by this technology. So, that is the case.
Dr. Davies:chanRoblesvirtualLawlibrary
Can I respond to that, your Honors?
Dr. Malayang:chanRoblesvirtualLawlibrary
I think Filipinos should be able to talk also here.
Chairperson:chanRoblesvirtualLawlibrary
Can we give a chance to Dr. Malayang?
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily the intricacies of the science involved in genetic modification per se which, I think our international friends, would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced from the most robust sciences, a technology could fail to be as useful as it was intended or its use lead to an [unintended harm to humans and the environment. This is so because science, by nature, as many scientists will agree, is very probabilistic rather than absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the best technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take advantage of a large pesticide market in India to help the country's farmers led to a massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic chemicals for fertilizer and pesticides that were [at] the time hailed as wonder technologies. Many scientists in the world at that time argued for their wider use but they later turned out to harm people, soils and water. They prove good then bad, so bad that scientists today are using their ill effects as justification for adopting alternative technologies to get us out of the synthetic chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x Medicines are technologies intended to do good but, with even the best science and the vetting processes using rigid safety and risk assessment methods, they still could cause side effects entirely undesired and many of which can cause chronic or acute threats to human life. This includes the use of "DDT" that was used to control lice among soldiers after the II World War which, after all, proved to be very bad.
x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and context, the particular place and context of the introduction of BT crops like BT talong. x x x the Philippines is among the world's biologically rich countries. x x x So, many of our insects are not even fully known. We do not know how they all behave to influence the transfer of genetic materials from plants to other plants. We do not fully know what we do not know about the intricate interactions between plants and between insects and other living things that define the universe of our healthful and balanced ecology. The universe of our healthful and balanced ecology certainly go beyond specific crops. I am concerned that, absent a full as against partial understanding of the intricate web of genetic flows and interactions among plants, animals and other living things in our wet and tropical ecosystems, it will require extraordinary care to tamper with any one element of this swirl of interrelationships. This is notwithstanding the seeming preponderance of evidence of safety in other countries and environment that are certainly not the same as ours. x x x we must be extra careful because the effects might be irreversible. Introducing a genetically modified plant x x x could cause a string of changes across many plants that, like the green revolution or in the case of medicine and the two other cases cited above, could turn out and only to be realized much later to be harmful to humans and the environment more than they were intended to be useful. x x x let us ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high biodiversity this is a particular condition in the Philippines; and (2) tested for error levels that are acceptable to or which can be tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests that we will be doing is a test process acceptable to all as well rather than merely concocted or designed by just a few people x x x must be a product of wider citizens' participation and reflect both scientific and traditional knowledge and cultural sensitivity of our people. It is in the NBF after all, x x x introducing BT Talong in the Philippines must be decided on the grounds of both science and public policy and public policy, in this case, must involve full public disclosure and participation in accepting both the potential gains and possible pains of BT Talong. The stakes, both positive and negative, are so high that I believe BT Talong would require more public scrutiny and wider democratic decision making beyond the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x prudence requires that maximum efforts be exerted to ensure its safety beyond the parameters of science and into the sphere of public policy. For to fail in doing so what might be highly anticipated to be beneficial may in some twist of failure or precaution and prudence and failure for due diligence to establish the safety of Bt Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do not want to do. I submit these views to the Court.
x x x x
Dr. Davies:chanRoblesvirtualLawlibrary
x x x another thing I would like to point out to the Court is, if you come into a market in the Philippines and you see nice Talong, it has probably been treated with various insecticides. So, there has been insecticide spray on your tips in your crops which are going to be harm on your farmers, your farmer's children, the insect populations and also dangerous to the consumers as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be beneficial to the insects and the environment and also has been shown not to be toxic in food. Therefore, we are changing a highly toxic chemical application for a much more benign modern technique that is beneficial to the environment and beneficial to the consumers. That is my comment with the views just made by my Filipino colleagues, your Honors.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone population or a reduction of that population it would still be both not beneficial to the healthful and balanced ecological health of the ecosystem. So to say that because the population of insects are exploded and the diversity of insects exploded as a result of this particular intervention is not necessarily good. That is my first point. The second one, you mentioned x x x the "talong" is laden with pesticide. The same pesticide were advised by scientists from the USAID before for us to use in this country because this is how to expand our production of food. This was part of the green revolution, the systemic use of pesticides and fertilizer. Now, of course, they were misused, I can guarantee that but, again, if that be the case, in the case of pesticide why can it not be in the case of BT that it can also be misused? x x x we are talking here not of the science or of the technology but on the policy aspect of the adoption of the technology. As I said, I am talking about the bakery not of a baked-bread.
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we have a very strict highly monitored field testing and I think Dr. Malayang knows about that because he was one of those who prepared the guidelines for the field testing. So that is not going to happen, it is a very strict regulatory system. We are known for that, actually, and...
x x x x
Dr. Saturnina Halos:chanRoblesvirtualLawlibrary
No, no. It does not happen because we have a risk management plan x x x.
x x x x
Dr. Halos:chanRoblesvirtualLawlibrary
x x x As far as do we know what is happening after we have given approval, yes, we are monitoring. We are monitoring as far as BT corn is concerned. We are monitoring, continuously monitoring, not only for the beneficial insects but also the effects that is continuing, we are also continuing to monitor the weeds, weed population. In weed we decide to spray...
Dr. Malayang:chanRoblesvirtualLawlibrary
And why is this, ma'am, why are we monitoring? Because they could be harmful?
Dr. Halos:chanRoblesvirtualLawlibrary
No we have to know what is happening.
Dr. Malayang:chanRoblesvirtualLawlibrary
Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, we are going to give you the data for that because you keep on asking, you know, you asked for a long term and we are going to give you that complete data.
x x x x
Dr. Medina:chanRoblesvirtualLawlibrary
I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds of protein x x x it is a misleading generalization. Secondly, I would like to say also that, when you say that BT crops is beneficial to insect population but, how about humans? But, let me tell and inform the Honorable Justices also that, in agriculture, there can be, the pests are there to reduce the yield. There are also diseases so, that this Bt is only controlling one kind of pest and, in my monitoring of BT corn as an example to this 2 years after the commercialization in 2003, at first planting in 2003, the corn is attacked by about a dozen insect pests and six major diseases. The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant, there are many fungal diseases, "phomopsis" x x x So in that case it is not field safe that you will not be using pesticide anymore with BT eggplant. When you use the BT eggplant, assuming that there is no more insect pests x x x There are many other methods of control and, therefore, do not assume that you do not use pesticide therefore, BT is the only solution. That is also a risky and wrong generalization or statement, x x x Dr. Halos x x x says that field tests are safe. I intend to disagree with that. Safe to what? Especially to contamination. If I may use this picture of the field testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter of something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that, the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that case, they can easily get in and get out and when they settle into the flowers and snip nectars and the fall of the pollen then they can bring out the pollen to contaminate outside that. In fact, even assuming that the fence is very small in size of the mess, the holes, still the insects can fly above that fence because the fence is only about 5 feet in height. So, in that case it is not safe. Some arguments say that "well the pollen will be dead" but, according to this technical manual of the Training Workshop On Data Collection for Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant Eggplant, that is the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is one of the main researchers the datas, here say according to "Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to say, that pollen can survive. This can fly as fast as something like 60 kilometers per hours so it just take may be 3 minutes and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their normal foraging.
x x x x
Dr. Medina:chanRoblesvirtualLawlibrary
x x x There is no data on the contamination so how come they argue, how can they conclude that it is safe when they have not monitored any potential pollen flow by insect mitigated or insect mediated flow pollen? So, in that case, the conclusion or the statement is really beyond what their data may be is if their data is about safety.
x x x x
Dr. Ebora:chanRoblesvirtualLawlibrary
x x x x
x x x I hope that we will be able to look at the experimental design and you will see that all the things are properly addressed, our risk assessment was done step by step, x x x I beg to disagree with my friend Dr. Medina because it is becoming ... we are confusing 2 things. We are not referring to contained trial. We are referring to confined field trial and in the design of this particular experiment, you have your BT eggplant, your non-BT eggplant so that you can compare the performance with the 2 crops. And, on design, you have 5 rows of plant BT eggplants that will serve as a pollen trap. When we say pollen trap is that it just open the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and then, after that, you have a space of 200 meters surrounding the field which is the isolation distance. That means no eggplant should be present in that particular distance because that is the isolation distance that is found to be safe, x x x we know that Bt protein is very specific x x x effective only against caterpillar x x x if they are eaten by other organism, they are not affected because it is very specific. The gut of the larva is very alkaline while the gut of other insects is likely acidic and, in that case, it does not have any harmful effect, x x x So another thing is we are saying that it seems to be ridiculous that you are saying that honeybee is going to fly from the fence and the size were even indicated. I would like to indicate that, that is not the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite, unfortunately, being done by other groups who are against the technology. x x x We should be able to have our own space, our own time, considering the given regulation. Follow them. But our experimentation not be destroyed because it is only then that we will be able to get the valuable data that is needed for an informed decision. Without that we will not be able to proceed and I hope we can discuss this based on the merits of the field trial, not from any other concern because the writ of kalikasan is about the effect of field trial in the environment.
Dr. Medina:chanRoblesvirtualLawlibrary
Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can read by chemical and by physical research communications this is Volume 271, pages 54-58, authored by Vasquez Pardonnet, published in 2000, publication under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small intestine. Small intestine ay mammal po iyan so, meaning, it is a proxy animal for safety [testing] to humans because we are also mammals so, the mice are usually the mammals 12 years ago, the data has been already there that there is binding site, therefore it is not only specific to insects but also to mammals. x x x he is saying that, by working on the natural BT is the same as the transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids. And the transformed GM Crop contains a fragment of that BT gene which is only half of that. And the mechanism, by the way, x x x the natural toxin is broken into smaller pieces inside the intestine of the insects because it is alkaline in terms of its system "ph" and for humans acidic. So it does not work. But, because the transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein, it is already activated and, in that case, that is the reason why there is a test and immediate effect to non-insect, meaning, to mammal, so that is the explanation of scientist doing studies on that aspect.
x x xx
Dr. Chakraborty:chanRoblesvirtualLawlibrary
The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x x x I will give some example. Yes, BT toxin, was it really good biological control agent? But it is a completely different gene when you produce it into an edible plant inside genetically. So, these are 2 different things. What will happen? We are scared that the efficacy, the use of BT toxin as a spray, as biological control agent, will be vanished because now there will be resistance against those in BT toxin, x x x resistance is coming very quickly, just like antibiotic resistance, x x x The second thing, I have asked many plant biologists this simple question, simple honest question. Do you know any plant that can kill a bee or a moth? No! There is no way, why? Because those are the "pollinators". Plant never kills a bee or a moth that goes against nature, x x x So, nature, for thousands of years, farmers help select or adopt edible non-toxic plants. And, now, with the high science we are converting them, non-toxic edible plant into a toxic plant. So not only toxic for the human, for the root microorganisms, x x x Those eggplants are not only for humans to consume. So human effect, we do not know but what will be the effect? Who will mind the effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while growing BT cotton x x x the leaves and other they use to attract animals to eat. x x x they found suddenly one thing that the BT cotton plants are not touched by those buffalos, those cows, those [boars], but they can distinguish which is BT and non-BT. x x x and when their animals started dying in some cases, they always blame, it is this animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed plants are there and we are converting one safest plant into a poisonous and toxic plant and what is the effect on the root microorganisms on the degrading animals and other? We do not know. That hard thing is the tunnel vision, the confined field trial, x x x why implement this confined field trial? Is this safe? Why do they have to do this x x x these things do good for a normal hybrid that is something but for the gene concept we cannot follow the same separation rules, same rules? So those are used, those separation distincts, those parameters are used not for the gene. So, which is the safe field trial protocol for the gene plants? We do not know. So there goes against [the] writ of kalikasan.
x x x x
Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
How much is the increase in crop yield? x x x
Dr. Halos:chanRoblesvirtualLawlibrary
x x x The average increase yield is about 24% and that is for corn. And this data is actually taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
x x x x
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so, you mean to say that corn production in the country has gone up and, because of that, you are saying that 24% and the income of farmers had gone up as well? Do you mean to say that the price of com had also gone up as a result of the increase in the volume of com production in the Philippines?
Dr. Halos:chanRoblesvirtualLawlibrary
Well, the price is dictated by the market.
Dr.Malayang:chanRoblesvirtualLawlibrary
That is precisely the point.
Dr. Halos:chanRoblesvirtualLawlibrary
Yes.
Dr. Malayang:chanRoblesvirtualLawlibrary
x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology such as GM Com or GM Talong affecting market there is also not only the regulatory but economic regime that is attendant to it that makes adjustments. So it may not be harmful to humans because we will not come out when we eat it but it might be harmful to the economy of a particular agricultural crop. x x x
x x x x
Dr. Ebora:chanRoblesvirtualLawlibrary
x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are independent studies. And, precisely, this is to determine the effect on natural enemies and the different insects x x x and some of those are already available, x x x you will be able to protect the environment only if you know how to have a proper information in making the decision. So, again, I am saying that, in field trial, you will be generating a lot of information that you will be able to use in making a wise decision and informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding butterflies and moths. Because they are not affected by BT because they are adult insects. The only one that is affected are actually the larva, not even the pupa. So, we would like that to be clear because it might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime and that is the reason why we have a continuous breeding program. So, it is a natural mechanism by an organism as mode of ad[a]potation. x x x are you telling us that we are going to stop our breeding work because, anyway, they are going to develop resistance. I think it is a wrong message x x x.
The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you can have the effect if you have, for example, the insects, you have a receptor. The toxin will bind into the receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you eliminate one of those steps you do not have any toxicity. So, that means binding by itself will not be toxicity. It is a wrong impression that, since you have binding, there will be toxicity. It is simply wrong because, the actuality that it should bind, it should fall then, it should insert, and it is a very common x x x. To say that binding is equivalent to toxicity is simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is basically the entire crystal protein. If it is already inside the gut of the insect it has to be clipped by the purchase coming from the gut and you have it activated and you have the toxin. So what you have in plant is already the toxin since the anther and the toxin, and the toxin in microorganisms, the anther which are already clipped by a purchase are the same. So, to say that they are different is actually wrong. You are comparing protoxin and toxin.
x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is why you have to characterize them and you have to separate the protein that are causing problem and protein that are not causing problem. That is why you have allergen and, as explained by Dr. Cariño, you have to check the sequence. x x x
x x x x
Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the production not that much into the safety. You have to look into it carefully that how much will get this efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned that European Union there is no consensus, x x x they have published and submitted the systemic list of genetically modified crop need for new approach in risk assessment. So that is what is needed. There is another article, how does scientific risk assessment of GM crop fit within wider risk analysis, x x x This is genetic engineering. The production process is very precise in selecting the inserted gene but not in its enhancement, x x x they are never looking into it. The second thing, they do not look into that from the laboratory condition to what is the real life situation. They do not take that into account x x x so this assessment protocol has to be modified or changed, x x x in the IAASTD or International Assessment of Agricultural Knowledge, Science and Technology for Development. There is a supreme body, so many nations, so many experts, scientists x x x. Only sustainable agricultural practice and that is the only alternative. This GM technology is not going to help them x x x In my country also, when the BT toxin evaluation was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody will be benefitted by that. So, we started questioning, x x x "What are the actual economic analysis indeed? Just show me". Then, they come up with an answer. Scale neutral means that even small farmers initially wanted BT cotton and big farmers also wanted BT cotton. They are partisans. It is not the economic benefit because, economically, it is not going to be beneficial so it is very much scale dependent its benefit. So, only the big farmers, large farmers and x x x the vegetable field you never can give separation. Chances you never can give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it cannot help technology. They have developed this technology for partisan large scale farming to completely automated for BT technology where no label will be there. But the failed experiments, the contracts whose patent will be over within 2-3 years, they are testing them in our country. So that is the bottom line.
x x x x
Chairperson:chanRoblesvirtualLawlibrary
Let us put, probably, a close to this hot tub proceeding now.
The issue that the Court is really interested to resolve is whether or not the conduct of the field trial of BT Talong by the respondents has violated or has threatened to violate the right of the people to a balanced and healthful ecology. Is there absolute certainty that it has not so violated such right. Because that is the requirement for applying or not applying the precautionary principle, x x x
Dr. Cariño:chanRoblesvirtualLawlibrary
Yes. The answer to that is we have not violated, you know, the right of the people...
Chairperson:chanRoblesvirtualLawlibrary
But there is no absolute certainty?
Dr. Cariño:chanRoblesvirtualLawlibrary
Well, quite certain, your Honor, because we have placed all the necessary measures and they did not show us, you know, there is no evidence of harm that has been shown to this Court. There is no evidence at all.
Chairperson:chanRoblesvirtualLawlibrary
That is your opinion.95ChanRoblesVirtualawlibrary
• identity;The above factors are particularly pertinent to the assessment of foods derived from genetically modified plants.104 However, the concept of substantial equivalence as the starting point of risk assessment was criticized for being "unscientific and arbitrary" and "intentionally vague and ill-defined to be as flexible, malleable, and open to interpretation as possible." It is likewise argued that "comparisons are designed to conceal significant changes resulting from genetic modifications," "the principle is weak and misleading even when it does not apply, effectively giving producers carte blanche", and that there is insufficiency of background information for assessing substantial equivalence. A paper presented at a WHO workshop pointed out that the main difficulty associated with the biosafety assessment of transgenic crops is the unpredictable nature of transformation. This unpredictability raises the concern that transgenic plants will behave in an inconsistent manner when grown commercially.105
• source;
• composition;
• effects of processing/cooking;
• transformation process;
• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
• protein expression product of the novel DNA:• effects on function;• possible secondary effects from gene expression or the disruption of the host DNA or metabolic pathways, including composition of critical macro, micro-nutrients, anti-nutrients, endogenous toxicants, allergens, and physiologically active substances; and,
• potential toxicity;
• potential allergenicity;
• potential intake and dietary impact of the introduction of the genetically modified food.103ChanRoblesVirtualawlibrary
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM counterparts.GM technology is thus seen as a failure in terms of addressing food security; rather, it supports corporate control and impedes common persons' access to adequate food. The root cause of hunger is not a lack of food, GM critics say, but a lack of access to food. The poor lack money to buy food and lack of land on which to grow it. It is essential to follow sustainable traditional farming practices that keeps food production in the hands of small-scale farmers, thereby reducing corporate control.110
• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with the disruptive effect of the GM transformation process accounting for approximately half the drop in yield.
• Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the International Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM crop yields were "highly variable" and in some cases, "yields declined".
• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed studies conducted by academic scientists using adequate controls, concluded that genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields while insect-resistant corn has only marginally improved yields. Traditional breeding outperforms genetic engineering hands down.
• In developing countries, crop failure can have severe consequences as illustrated in India, where a large number of cotton farmers, unable to pay back high interest loans, have committed suicide. Several investigations have implicated the unreliable performance of Bt cotton as a major contributor.
• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while those remaining had to be subsidized by the government. Similarly in the US, Bt cotton yields are not necessarily consistent or more profitable.109ChanRoblesVirtualawlibrary
• increased fitness of GM plants;A critical observation was made on the argument that there is not enough evidence to reject the hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed to clarify potential adverse effects on health or the environment are nearly absent in peer-reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic knowledge crucial to risk assessments have become apparent. The present uncertainty warrants further research and it has been demonstrated that there is a risk of bias relying on hypotheses that dominate mainstream science. There is therefore a need for independent research that is without prejudice and unbiased by economic and professional interests.113 In another article it was noted that the clinical trials carried out to ensure that negative externalities do not affect humans and the environment are conducted by the same private firms that created the products, raising conflict of interest concerns.114
• outbreeding depression after hybridization with wild relatives;
• outcrossing between related species and the fate of a transferred GM trait;
• altered flower phenology;
• altered fecundity, increasing seed (gene) flow;
• increased frequency of horizontal gene flow;
• resistance development of pests;
• effects on non-target organisms;
• effects on non-target organisms due to altered nutritional composition of the GM plant;
• effects on non-target organisms due to accumulation of toxic compounds;
• effects on rhizo sphere microbiota;
• effects on symbiotic non-target organisms;
• changes in soil functions caused by GM traits;
• effects on biological control;
• altered use of agrochemicals;
• indirect changes in susceptibility of crops against pathogens;
• adverse effects on agro-biodiversity;
• indirect effects in fertilizer use;
• potential changes in landscape structure;
• increased production of greenhouse gases;
• increased mineral nutrient erosion and fertilizer leaching;
• altered chemical attributes of soil fraction;
• emerging of stacked events;
• the necessity of regional differentiation of risk assessments.112ChanRoblesVirtualawlibrary
The Case for a GM-Free Sustainable World - A SummaryThe ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all aspects relevant to health and the environment. In addition, they bring food security and social and cultural well being to local communities everywhere. There is an urgent need for a comprehensive global shift to all forms of sustainable agriculture.118Why GM-Free?GM crops have failed to deliver the promised benefits and are posing escalating problems on the farm. Transgenic contamination is now widely acknowledged to be unavoidable, and hence there can be no co-existence of GM and non-GM agriculture. Most important of all, GM crops have not been proven safe. On the contrary, sufficient evidence has emerged to raise serious safety concerns, that if ignored could result in irreversible damage to health and the environment. GM crops should therefore be firmly rejected now.
1. GM crops failed to deliver promised benefits
o No increase in yields or significant reduction in herbicide and pesticide use
o United States lost an estimated $12 billion over GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in India
o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use
o Bt biopesticide traits threatening to create superweeds and bt-resistant pests
3. Extensive transgenic contamination unavoidable
o Extensive transgenic contamination found in maize landraces in remote regions of Mexico
o 32 out of 33 commercial seed stocks found contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional
o There can be no co-existence of GM and non-GM crops
4. GM crops not safe
o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the transgenic process or the transgenic construct, and may hence be general to all GM food
6. Dangerous gene products are incorporated into food crops
o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects, and some are potent immunogens and allergens for humans and other mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to suppress the immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects; vaccines and viral sequences such as the 'spike' protein gene of the pig coronavirus, in the same family as the SARS virus linked to the current epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system and recombine with viruses and bacteria to generate new and unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the spread of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.
8. Broad-spectrum herbicides highly toxic to humans and other species
o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account for 75% of all GM crops worldwide, are both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological toxicities, and birth defects in humans and mammals; also toxic to butterflies and a number of beneficial insects, to larvae of clams and oysters, Daphnia and some freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and fungi, especially those that fix nitrogen.
o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to many body functions have been reported after exposures at normal use levels; glyphosate exposure nearly doubled the risk of late spontaneous abortion, and children born to users of glyphosate had elevated neurobehavioral defects; glyphosate retards development of the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of earthworms caused at least 50 percent mortality and significant intestinal damage among surviving worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction that may be linked to human cancers.
9. Genetic engineering creates super-viruses
o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances the scope and probability of horizontal gene transfer and recombination, the main route to creating viruses and bacteria that cause disease epidemics.
o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the laboratory millions of recombinant viruses that have never existed in billions of years of evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant materials and tools of genetic engineering, as much as for the intentional creation of bio-weapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human volunteers; antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria, making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian cells, raising the possibility for triggering cancer
o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer
o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially unstable and prone to horizontal gene transfer and recombination, with all the attendant hazards: gene mutations due to random insertion, cancer, re-activation of dormant viruses and generation of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence, especially on horizontal gene transfer. Key experiments failed to be performed, or were performed badly and then misrepresented. Many experiments were not followed up, including investigations on whether the CaMV 35S promoter is responsible for the 'growth-factor-like' effects observed in young rats fed GM potatoes.
10/21/13One of the most serious concerns raised against GM crops is that expressed by one of our political analysts now serving in Congress, viz:
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social and safety assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by GM seed developers and some scientists, commentators, and journalists that there is a "scientific consensus" on GMO safety and that the debate on this topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety does not exist. The claim that it does exist is misleading and misrepresents the currently available scientific evidence and the broad diversity of opinion among scientists on this issue. Moreover, the claim encourages a climate of complacency that could lead to a lack of regulatory and scientific rigour and appropriate caution, potentially endangering the health of humans, animals, and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current knowledge is always open to well-founded challenge and disagreement. We endorse the need for further independent scientific inquiry and informed public discussion on GM product safety and urge GM proponents to do the same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of animal feeding studies of GM crops found "An equilibrium in the number [of] research groups suggesting, on the basis of their studies, that a number of varieties of GM products (mainly maize and soybeans) are as safe and nutritious as the respective conventional non-GM plant, and those raising still serious concerns". The review also found that most studies concluding that GM foods were as safe and nutritious as those obtained by conventional breeding were "performed by biotechnology companies or associates, which are also responsible [for] commercializing these GM plants".
A separate review of animal feeding studies that is often cited as showing that GM foods are safe included studies that found significant differences in the GM-fed animals. While the review authors dismissed these findings as not biologically significant, the interpretation of these differences is the subject of continuing scientific debate and no consensus exists on the topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding studies in which one group of animals is fed GM food and another group is fed an equivalent non-GM diet. Independent studies of this type are rare, but when such studies have been performed, some have revealed toxic effects or signs of toxicity in the GM-fed animals. The concerns raised by these studies have not been followed up by targeted research that could confirm or refute the initial findings.
The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent research calls of the European Union and the French government to investigate the long-term health impacts of GM food consumption in the light of uncertainties raised by animal feeding studies. These official calls imply recognition of the inadequacy of the relevant existing scientific research protocols. They call into question the claim that existing research can be deemed conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food consumption on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no epidemiological studies in human populations have been carried out to establish whether there are any health effects associated with GM food consumption. As GM foods are not labelled in North America, a major producer and consumer of GM crops, it is scientifically impossible to trace, let alone study, patterns of consumption and their impacts. Therefore, claims that GM foods are safe for human health based on the experience of North American populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or that they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of the regulatory system for GM foods and crops in that country. The report declared that it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous scientific testing and that the "default prediction" for every GM food should be that the introduction of a new gene will cause "unanticipated changes" in the expression of other genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of these changes identified in the report included the presence of new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term effects of GM foods on human health and the environment, "many unanswered questions remain" and that "safety concerns cannot, as yet, be dismissed completely on the basis of information currently available". The report called for more research, especially on potential impacts on human health and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified, acknowledging data gaps and potential risks, as well as potential benefits, of GM technology. For example, a statement by the American Medical Association's Council on Science and Public Health acknowledged "a small potential for adverse events ... due mainly to horizontal gene transfer, allergenicity, and toxicity" and recommended that the current voluntary notification procedure practised in the US prior to market release of GM crops be made mandatory. It should be noted that even a "small potential for adverse events" may turn out to be significant, given the widespread exposure of human and animal populations to GM crops.
A statement by the board of directors of the American Association for the Advancement of Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to represent the view of AAAS members as a whole and was challenged in an open letter by a group of 21 scientists, including many long-standing members of the AAAS. This episode underlined the lack of consensus among scientists about GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and food safety. However, the report based on this project, "A Decade of EU-Funded GMO Research", presents no data that could provide such evidence, from long-term feeding studies in animals.
Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the development of safety assessment approaches". Only five published animal feeding studies are referenced in the SAFOTEST section of the report, which is dedicated to GM food safety. None of these studies tested a commercialised GM food; none tested the GM food for long-term effects beyond the subchronic period of 90 days; all found differences in the GM-fed animals, which in some cases were statistically significant; and none concluded on the safety of the GM food tested, let alone on the safety of GM foods in general. Therefore the EU research project provides no evidence for sweeping claims about the safety of any single GM food or of GM crops in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies "document the general safety and nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the studies listed reveals that many do not provide evidence of GM food safety and, in fact, some provide evidence of a lack of safety. For example:chanRoblesvirtualLawlibrary
• Many of the studies are not toxicological animal feeding studies of the type that can provide useful information about health effects of GM food consumption. The list includes animal production studies that examine parameters of interest to the food and agriculture industry, such as milk yield and weight gain; studies on environmental effects of GM crops; and analytical studies of the composition or genetic makeup of the crop.
• Among the animal feeding studies and reviews of such studies in the list, a substantial number found toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns raised by these studies have not been satisfactorily addressed and the claim that the body of research shows a consensus over the safety of GM crops and foods is false and irresponsible.
• Many of the studies were conducted over short periods compared with the animal's total lifespan and cannot detect long-term health effects.
We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they do not "document the general safety and nutritional wholesomeness of GM foods and feeds". Rather, some of the studies give serious cause for concern and should be followed up by more detailed investigations over an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target organisms and effects of the herbicides used in tandem with herbicide-tolerant GM crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A review of environmental risk assessment approaches for GM crops identified shortcomings in the procedures used and found "no consensus" globally on the methodologies that should be applied, let alone on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse effects on non-target and beneficial organisms - effects that are widely neglected in regulatory assessments and by some scientific commentators. Resistance to Bt toxins has emerged in target pests, and problems with secondary (non-target) pests have been noted, for example, in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies have associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and adverse health effects in human and animal populations exposed to Roundup, the herbicide used on the majority of GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists on the environmental risks of GM crops found that funding and disciplinary training had a significant effect on attitudes. Scientists with industry funding and/or those trained in molecular biology were very likely to have a positive attitude to GM crops and to hold that they do not represent any unique risks, while publicly-funded scientists working independently of GM crop developer companies and/or those trained in ecology were more likely to hold a "moderately negative" attitude to GM crop safety and to emphasize the uncertainty and ignorance involved. The review authors concluded, "The strong effects of training and funding might justify certain institutional changes concerning how we organize science and how we make public decisions when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM foods and crops
The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The Cartagena Protocol is an international agreement ratified by 166 governments worldwide that seeks to protect biological diversity from the risks posed by GM technology. It embodies the Precautionary Principle in that it allows signatory states to take precautionary measures to protect themselves against threats of damage from GM crops and foods, even in case of a lack of scientific certainty.
Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years to develop international guidelines for the assessment of GM foods and crops, because of concerns about the risks they pose. These guidelines were adopted by the Codex Alimentarius Commission, of which over 160 nations are members, including major GM crop producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they agree that genetic engineering differs from conventional breeding and that safety assessments should be required before GM organisms are used in food or released into the environment.
These agreements would never have been negotiated, and the implementation processes elaborating how such safety assessments should be conducted would not currently be happening, without widespread international recognition of the risks posed by GM crops and foods and the unresolved state of existing scientific understanding.
Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and foods that have shown adverse effects on animal health and non-target organisms, indicated above. Many of these studies have, in fact, fed into the negotiation and/or implementation processes of the Cartagena Protocol and Codex. We support the application of the Precautionary Principle with regard to the release and transboundary movement of GM crops and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the totality of scientific research outcomes in the field of GM crop safety is nuanced, complex, often contradictory or inconclusive, confounded by researchers' choices, assumptions, and funding sources, and in general, has raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human food and animal feed supply, and whether the identified risks are acceptable or not, are decisions that involve socioeconomic considerations beyond the scope of a narrow scientific debate and the currently unresolved biosafety research agendas. These decisions must therefore involve the broader society. They should, however, be supported by strong scientific evidence on the long-term safety of GM crops and foods for human and animal health and the environment, obtained in a manner that is honest, ethical, rigorous, independent, transparent, and sufficiently diversified to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and misrepresentative claims that a "scientific consensus" exists on GMO safety.123ChanRoblesVirtualawlibrary
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and marginalize small farmers. As the statement x x x of the 81 members of the World Future Council put it, "While profitable to the few companies producing them, GMO seeds reinforce a model of farming that undermines sustainability of cash-poor farmers, who make up most of the world's hungry. GMO seeds continue farmers' dependency on purchased seed and chemical inputs. The most dramatic impact of such dependency is in India, where 270,000 farmers, many trapped in debt for buying seeds and chemicals, committed suicide between 1995 and 2012."124ChanRoblesVirtualawlibraryIn sum, current scientific research indicates that the biotech industry has not sufficiently addressed the uncertainties over the safety of GM foods and crops.
The release of a GM crop into its area of origin or diversity has far greater ramifications and potential for negative impact than for other species. To justify this, there needs to be extraordinarily compelling reasons and only when other choices are not available. GM crops that offer incremental advantages or solutions to specific and limited problems are not sufficient reasons to justify such release. The TEC did not find any such compelling reasons under the present conditions. The fact is that unlike the situation in 1960s there is no desperate shortage of food and in fact India is in a reasonably secure position. The TEC therefore recommends that release of GM crops for which India is a centre of origin or diversity should not be allowed.127ChanRoblesVirtualawlibraryIn 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment minister Jairam Ramesh placed an indefinite moratorium on its further field testing. This was done after discussions with scientists, both pro and anti-GM crops, activists and farmers across the country.
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The principles and elements of this approach are hereby implemented through the decision-making system in the NBF;The NBF contains general principles and minimum guidelines that the concerned agencies are expected to follow and which their respective rules and regulations must conform with. In cases of conflict in applying the principles, the principle of protecting public interest and welfare shall always prevail, and no provision of the NBF shall be construed as to limit the legal authority and mandate of heads of departments and agencies to consider the national interest and public welfare in making biosafety decisions.135
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a RA to determine whether a regulated article poses significant risks to human health and the environment:chanRoblesvirtualLawlibraryConsidering the above minimum requirements under the most comprehensive national biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7 of the NBF mandates a more transparent, meaningful and participatory public consultation on the conduct of field trials beyond the posting and publication of notices and information sheets, consultations with some residents and government officials, and submission of written comments, provided in DAO 08-2002.
5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based on available scientific and technical information. The expert advice of and guidelines developed by, relevant international organizations, including intergovernmental bodies, and regulatory authorities of countries with significant experience in the regulatory supervision of the regulated article shall be taken into account in the conduct of risk assessment; 5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a particular level of risk, an absence of risk, or an acceptable risk; 5.2.1.3 The identified characteristics of a regulated article and its use which have the potential to pose significant risks to human health and the environment shall be compared to those presented by the non-modified organism from which it is derived and its use under the same conditions; 5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event. The required information may vary in nature and level of detail from case to case depending on the regulated article concerned, its intended use and the receiving environment; and, 5.2.1.5 If new information on the regulated article and its effects on human health and the environment becomes available, and such information is relevant and significant, the RA shall be readdressed to determine whether the risk has changed or whether there is a need to amend the risk management strategies accordingly.
5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies shall be in accordance with the policies and standards on RA issued by the NCBP. Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department and agencies may issue their own respective administrative issuances establishing the appropriate RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety decisions shall be determined by concerned departments and agencies subject to the requirements of law and the standards set by the NCBP. Where applicable and under the coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on the matter. (Emphasis supplied)
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort was made to operationalize the principles of the NBF in the conduct of field testing of Bt talong. The failure of DAO 08-2002 to accommodate the NBF means that the Department of Agriculture lacks mechanisms to mandate applicants to comply with international biosafety protocols. Greenpeace's claim that BPI had approved nearly all of the applications for GMO field trials is confirmed by the data posted on their website. For these reasons, the DAO 08-2002 should be declared invalid.SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate, and conduct public awareness, education, meaningful, responsible and accountable participation. They shall incorporate into their respective administrative issuances and processes best practices and mechanisms on public participation in accordance with the following guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety decision-making process from the time the application is received. For applications on biotechnology activities related to research and development, limited primarily for contained use, notice of the filing of such application with the NCBP shall be sufficient, unless the NCBP deems that public interest and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. - In conducting public participation processes, the following minimum requirements shall be followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which they have access. Such notice must be adequate, timely, and effective and posted prominently in public places in the areas affected, and in the case of commercial releases, in the national print media; in all cases, such notices must be posted electronically in the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should allow relevant stakeholders to understand and analyze the benefits and risks, consult with independent experts, and make timely interventions. Concerned departments and agencies shall include in their appropriate rules and regulations specific time frames for their respective public participation processes, including setting a minimum time frame as may be appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These could include formal hearings in certain cases, or solicitation of public comments, particularly where there is public controversy about the proposed activities. Public consultations shall encourage exchanges of information between applicants and the public before the application is acted upon. Dialogue and consensus-building among all stakeholders shall be encouraged. Concerned departments and agencies shall specify in their appropriate rules and regulations the stages when public consultations are appropriate, the specific time frames for such consultations, and the circumstances when formal hearings will be required, including guidelines to ensure orderly proceedings. The networks of agricultural and fisheries councils, indigenous peoples and community-based organizations in affected areas shall be utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public participation in writing or through public hearings, as appropriate, and which allow the submission of any positions, comments, information, analyses or opinions. Concerned departments and agencies shall include in their appropriate rules and regulations the stages when and the process to be followed for submitting written comments; and,
7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission of written comments. Public concerns as reflected through the procedures for public participation shall be considered in making the decision. The public shall be informed of the final decision promptly, have access to the decision, and shall be provided with the reasons and considerations resulting in the decision, upon request.
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects using new processes/technologies with uncertain impacts. This is an interim category - unclassified projects will eventually be classified into their appropriate groups after EMB evaluation.137 (Emphasis supplied)All government agencies as well as private corporations, firms and entities who intend to undertake activities or projects which will affect the quality of the environment are required to prepare a detailed Environmental Impact Statement (EIS) prior to undertaking such development activity.138 An environmentally critical project (ECP) is considered by the EMB as "likely to have significant adverse impact that may be sensitive, irreversible and diverse" and which "include activities that have significant environmental consequences."139 In this context, and given the overwhelming scientific attention worldwide on the potential hazards of GMOs to human health and the environment, their release into the environment through field testing would definitely fall under the category of ECP.
x x x xThe foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of serious attention to their mandate under the law in the implementation of the NBF, as provided in the following sections of EO 514:
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law. Granting Mr. Witness that a certain project or undertaking is not classified as environmentally critical project, how would you know that the BT talong field testing is not located in an environmentally critical area this time?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Objection Your Honor, argumentative.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Witness may answer.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition, petitioners never alleged that the project, the subject matter rather of this instant petition, is within an environmentally critical project.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Your Honor the Witness did not answer the question.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Please answer the question.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Personally I have conferred with our personnel from the Environmental Impact Assessment Division and they intimated to me that the locations of the project, rather of this subject matter of the instant petition, not within any declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
In other words, you are aware of the area where the BT Talong experiments are being conducted. Is that the premise?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I said personnel from Environmental Impact Division at our office, as I said they intimated to me that it's not within declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
That being the case, you did not act further? [You] did not make any further evaluation, on whether the activity has an environmental impact? Is that the correct premise?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects of the Bureau's affairs. But when it comes to highly technical matters, I have to rely on our technical people especially on environmentally impact assessment matters.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness coordinate with your Office with regard the field testing of BT Talong?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
I'm sorry Your Honors I am not privy to that personally.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard the field testing of BT Talong as required under the law?
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Already answered your Honor, objection.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
The witness in effect said he does not know, he's not in a position to answer.
x x x x
ATTY. SORIANO:chanRoblesvirtualLawlibrary
Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?
ATTY. ACANTILADO:chanRoblesvirtualLawlibrary
Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet received any project with respect to that Your Honor. So the witness would not be in a position to answer that Your Honors.
HON. J. DICDICAN:chanRoblesvirtualLawlibrary
Lay the basis first.
ATTY. SORIANO:chanRoblesvirtualLawlibrary
The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up question is specifically Your Honor the BT talong field testing.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Unclassified?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
As the section will initially provide. But there must be prior ... may I continue to harp on that Your Honors. There must be prior ... let's say conditions ... there must be prior evaluation and assessment just the same by the EMB.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Prior to what Mr. Witness?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
We will categorize it as unclassified but there must be ... (interrupted)
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So initially you call it unclassified and then you say prior to...
ATTY. SEGUI:chanRoblesvirtualLawlibrary
I'm sorry Your Honors, may I reform.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
Yes please.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent evaluation or assessment of the matter to see if we also have the resources and expertise if it can be finally unclassified. I should say should fall within the fairview of the system, the EIA system. In other words, it's in a sort of how do you say that it's in a state of limbo. So it's unclassified, that's the most we can do in the meantime.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects such as this one in particular?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, Your Honors as of now.
HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So therefore, when you say initially it's unclassified and then you're saying afterwards the EMB needs evaluation but then you're saying the EMB is without any capability to evaluate then what happens?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how we interpret it. But the truth of the matter is with all pragmatism we don't have the resources as of now and expertise to do just that.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So in other words you admit that the EMB is without any competence to make a categorical or initial examination of this uncategorized activity, is that what you mean?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It would appear, yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
What do you think would prompt your office to make such initial examination?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the parties concerned.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
So that means you are waiting for a request? Are you not? Proactive in this activity in performing your obligations and duties?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the environment is hardly ... the ratio is ... if we want to protect indeed the environment as we profess, with all due respect if Congress speaks otherwise.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters related to environmental management, conservation and pollution control, right?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical Areas of Projects and more specifically focused on Proclamation No. 2146. With respect to this BT Talong, you mentioned that this is at first is uncategorized, it's not within?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
It's not within Proclamation 2146 Your Honor.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining to the environment, your Office has the mandate and then you later say that your Office is without competence, do I follow your line of standing?
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now within Proclamation 2146.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Yes, but under the implementing rules your Office has the mandate to act on other unclassified activities and you answered that your Office has no competence.
ATTY. SEGUI:chanRoblesvirtualLawlibrary
Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, the Department of Environment and Natural Resources (DENR) shall ensure that environmental assessments are done and impacts identified in biosafety decisions. It shall also take the lead in evaluating and monitoring regulated articles intended for bioremediation, the improvement of forest genetic resources, and wildlife genetic resources.On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned agencies to ensure that there will be funding for the implementation of the NBF as it was intended to be a multi-disciplinary effort involving the different government departments and agencies.
x x x x
4.12 Focal Point and Competent National Authorities.
4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The competent national authorities, responsible for performing the administrative functions required by the Protocol, shall be, depending on the particular genetically modified organisms in question, the following:chanRoblesvirtualLawlibrary
x x x x
4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by the Protocol that concern regulated organisms intended for bioremediation, the improvement of forest genetic resources, and wildlife genetic resources, and applications of modern biotechnology with potential impact on the conservation and sustainable use of biodiversity. (Emphasis supplied)
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to implement the NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006 and thereafter, the funding requirements shall be included in the General Appropriations Bill submitted by each of said departments to Congress.All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of the NBF.
These concerned departments shall enter into agreement on the sharing of financial and technical resources to support the NCBP and its Secretariat.
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.Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment. It has been incorporated in various international legal instruments.144 The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development. The Protocol thus provides:
The Rules likewise incorporated the principle in Part V, Rule 20, which states:Article
10
DECISION PROCEDURE
x x x x
6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.
x x x xArticle
11
PROCEDURE FOR LIVING MODIFIED ORGANISMS
INTENDED FOR DIRECT USE AS FOOD OR FEED,
OR FOR PROCESSING
8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize such potential adverse effects.
x x x xAnnex III
RISK ASSESSMENT
General principles
x x x x
4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a particular level of risk, an absence of risk, or an acceptable risk.
The precautionary principle applies when the following conditions are met145:
- there exist considerable scientific uncertainties;
- there exist scenarios (or models) of possible harm that are scientifically reasonable (that is based on some scientifically plausible reasoning);
- uncertainties cannot be reduced in the short term without at the same time increasing ignorance of other relevant factors by higher levels of abstraction and idealization;
- the potential harm is sufficiently serious or even irreversible for present or future generations or otherwise morally unacceptable;
- there is a need to act now, since effective counteraction later will be made significantly more difficult or costly at any later time.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. An application of the precautionary principle to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific consensus emerges.146PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - 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.
SEC. 2. 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; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.
Endnotes:
1Rollo (G.R. No. 209271), pp. 135-159. Penned by Associate Justice Isaias P. Dicdican with Associate Justices Myra V. Garcia-Fernandez and Nina G. Antonio-Valenzuela concurring.
2 Id. at 161-174.
3 CA rollo (Vol. VI), Annex "O" of Biotech Petition.
4 <http://www.isaaa.org/inbrief//default.asp> (visited last November 7, 2014).
5 UPLBFI, "History" <http://uplbfi.org/?page_id=231/> (visited last November 7, 2014).
6 "AN ACT TO STRENGTHEN THE UNIVERSITY OF THE PHILIPPINES AS THE NATIONAL UNIVERSITY."
7 RA 9500, Sec. 3(c).
8 Susan R. Barnum, Biotechnology: An Introduction by 1 (1998).
9 University of the Philippines Los Baños National Institute of Molecular Biology and Biotechnology, "About Us" <http://biotech.uplb.edu.ph/index.php/en/about-us> (visited last November 7, 2014).
10 The Center for Media and Democracy, "GMOs in the Philippines" <http:/www.sourcewatch.org/index.php/GMOs_in_the_Philippines>, (visited last November 7, 2014).
11 Id. (See also CA rollo, pp. 882-884).
12 EO 514, Sec. 2.1.
13 Id., Sec. 8.
14 CA rollo (Vol. I), pp. 82-84.
15 Id. at 85-86.
16 CA rollo (Vol. II), pp. 885-886.
17 Id. at 1058-1064.
18 CA rollo (Vol. I), pp. 67-69.
18-a Id. at 400.
19 A.M. No. 09-6-8-SC (2010).
20 CA rollo (Vol. III), p. 2026.
21 Id. at 2120-2123. UPLB was not served with the writ of kalikasan issued by this Court nor furnished with copy of the petition of Greenpeace, et al. Its Answer, adopting the arguments and allegations in the verified return filed by UPLBFI, was filed in the CA. See CA Resolution dated August 17, 2012, id. at 2117-2119.
22 Id. at 2100.
23 Id. at 2312-2324.
24 CA rollo (Vol. IV), pp. 2450-2460.
25 Id. at 2864-2871.
26Rollo (G.R. No. 209271), Vol. 1, pp. 157-158.
27 SECTION 1. Applicability. - When there is 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.
28Rollo (GR. No. 209271), Vol. I, pp. 168-170.
29 Id. at 35-37.
30 Id. at 81.
31Rollo (G.R. No. 209301), pp. 48-50, 53-55.
32Rollo (G.R. No. 209271), Vol. IX, pp. 4111-4112. Citations omitted.
33 Id. at 4112-4115. Citations omitted.
34Rollo (G.R. No. 209271), Vol. IX, p. 4115.
35 Id., Vol. XI, pp. 5715-5717.
36 Id. at 5835-5837.
37Rollo (G.R. No. 209271), Vol. V, pp. 2386-2387.
38Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).
39 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005).
40Social Justice Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil. 321 (1997); and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
41Kilosbayan Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 137.
42 G.R. No. 101083, July 30, 1993, 224 SCRA 792, 804-805.
43 Id. at 802-803.
44 Rule 2, Sec. 5 reads in part:chanRoblesvirtualLawlibrary
SEC. 5. Citizen suit. - 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. x x x
45 See Annotation on A.M. 09-6-8-SC.
46Santiago v. Court of Appeals, 348 Phil. 792, 800 (1998).
47Barbieto v. Court of Appeals, G.R. No. 184645, October 30, 2009, 604 SCRA 825, 840.
48Office of the Deputy Ombudsman for Luzon v. Francisco, Sr., G.R. No. 172553, December 14, 2011, 662 SCRA 439,449, citing David v. Macapagal-Arroyo, supra note 38, at 754.
49 546 Phil. 87, 96-98 (2007).
50 See Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870, June 26, 2012, 674 SCRA 555, 608.
51 George Acquaah, Understanding Biotechnology: an integrated and cyber-based approach, (Pearson Education, Inc., 2004) at 62, 64, 69 and 70.
52 Id. at 72.
53 Nancy Harris, Genetically Engineered Foods, (Greenhaven Press, 2004) at 5-6.
54 Id. at 7.
55 Sheweta Barak, Deepak Mudgil and B.S. Khatkar, "Genetically modified food: benefits, safety aspects and concerns" Asian Journal of Food and Agro-Industry <www.ajofai.info/Abstact/Genetically%2food%20benefits,%20safety%20aspects%2concerns.pdf> (visited last November 7, 2014).
56 Id. at 550.
57 Herbicide is defined as "a poisonous substance used to destroy unwanted plants." (Compact Oxford English Dictionary 473 [3rd ed. 2005]).
58 Supra note 55, at 551-552.
59 Id. at 552-553.
60 Indur M. Goklany, "Applying the Precautionary Principle to Genetically Modified Crops" Policy Study Number 157 (2000): 4-5, 8 and 10. Print.
61 Roberto Verzola, "Genetically Engineered Foods Have Health Risks" supra note 53, at 38-42.
62 Mae-Wan Ho, "Ban GMOs Now," Lecture by at conference on Traditional Seeds Our National Treasure and Heritage - Traditional and Organic Agriculture. Bewelder, Warsaw, Poland, April 6, 2008. <http://www.i-sis.org.uk/Ban_GMOs_Now.php.> (visited last December 4, 2014)
63 Anita Bakshi, "Potential Adverse Health Effects of Genetically Modified Crops" Journal of Toxicology and Environmental Health B (2003) <http://globalseminarhealth.wdfiles.com/local--files.nutrition/Bakshi.pdf> (visited last December 4, 2014).
64 Ken Roseboro, ed. "Arpad Pusztai and the Risks of Genetic Engineering" The Organic and Non-GMO Report (June 2009) <http://www.organicconsumers.org/articles/article_18101.cfm>. (visited last December 6, 2014).
65 Verzola, supra note 61, at 40.
66 Barak, Mudgil and Khatkar, supra note 55, at 555.
67 Bakshi, supra note 63, at 217; Barak, Mudgil and Khatkar, id.
68 Verzola, supra note 61, at 40.
69 Hans R. Larsen, "Milk and the Cancer Connection" International Health News (April 1998) <http://www.notmilk.com/drlarsen.html>. (visited last December 6, 2014).
70Mercola, Monsanto's Roundup Herbicide May Be Most Important Factor In Development of Autism and Other Chronic Diseases, <http://articles.mercola.com/sites/articles/archive/2013/06/09/monsanto-roundup-herbicide.aspx>. (visited last December 6, 2014).
71 Ben Lilliston, "Genetically Modified Organisms are Contaminating Organic Crops," reproduced with permission in Genetically Engineered Foods, supra note 53, at 55.
72 Barak, Mudgil and Khatkar, supra note 55, at 555.
73 Id.
74 Andreas Bauer-Panskus, Sylvia Hamberger and Christoph Then, "Transgene escape - Global atlas of uncontrolled spread of genetically engineered plants" Test Biotech <https://www.testbiotech.org/sites/default/files/Testbiotech_Transgene_Escape.pdf>. (visited last December 6, 2014).
75 "Contamination of Crops" <http://www.gmeducation.org/environment/p149075-contamination-of-crops.html>. (visited last December 7, 2014).
76 Gene Watch UK, Fact Sheet No. 3 (Forage Maize), UK Farm Scale Trials with GM Crops-2000, <http://www.genewatch.org/pub-537624>. (visited last December 7, 2014).
77 "Transgenic Crops: an Introduction and Resource Guide" <http://cls.casa.colostate.edu/transgeniccrops/croptocrop.html>.
78 "Biology of Brinjal" <http://dbtbiosafety.nic.in/guidelines/brinjal.pdf>.
79 Lilliston, supra note 71, at 54.
80 Testbiotech Report, supra note 74, at 7.
A landrace is defined as "a dynamic population(s) of a cultivated plant that has historical origin, distinct identity and lacks formal crop improvement, as well as often being genetically diverse, locally adapted and associated with traditional farming systems." Tania Carolina Camacho Villa, Nigel Maxted, Maria Scholten and Brian Ford-Lloyd, "Defining and Identifying crop landraces," Characterization and Utilitzation Plant Genetic Resources: Characterization and Utilization Vol. 3, Issue 3 (December 2005) <http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=689208>.
81 Id. at 39.
82 <http://onlinelibrary.wiley.com/doi/10.1046/j.0960-7412.2002.001607.x/full>.
83 Barak, Mudgil and Khatkar, supra note 55, at 555-556.
84 Z.H. Chen, L.J. Chen, Y.L. Zhang, Z.J. Wu, "Microbial properties, enzyme activities and the persistence of exogenous proteins in soil under consecutive cultivation of transgenic cottons (Gossypium hirsutum L.)" PLANT SOIL ENVIRON., 57, 2011 (2): 67-74 <www.agriculturejournals.cz/publicFiles/35214.pdf>. (visited last December 6, 2014).
85 Biao Liu, Qing Zeng, Fengming Yan, Haigen Xu, and Chongren Xu, Review: Effects of Transgenic Plants on Soil Microorganisms" <http://link.springer.com/article/10.1007/slll04-004-1610-8#page-2>. (visited last December 6, 2014).
86 E. Vinje, "Is Monsanto's Roundup Killing Our Soil?," Planet Natural <http://www.planetnatural.com/roundup-killing-soil/>. (visited last December 6, 2014) See also Stephanie Strom, "Misgivings About How a Weed Killer Affects the Soil" The New York Times (September 19, 2013) <http://www.nytimes.com/2013/09/20/business/misgivings-about-how-a-weed-killer-affects-the-soil.html?pagewanted=all&_r=0> (visited last December 6, 2014).
87 R.A. Relyea, "The Lethal Impacts of Roundup and Predatory Stress on Six Species of North American Tadpoles," Archives of Environmental Contamination and Toxicology v. 48, n.3, (April 1, 2005). <http://www.mindfully.org/Pesticide/2005/Roundup-Tadpoles-Relyealapr05.htm> (visited last December 6, 2014).
88 Mr. Neil J. Young QC, "Expert Witnesses: On the stand or in the hot tub - how, when and why? Formulating the Question for Opinion and Cross-Examining the Experts" Commercial Court Seminar, Quezon City, October 27, 2010.
89 CA rollo (Vol. V), pp. 3482-3488.
90 CA rollo (Vol. III), pp. 1834-1836.
91 Id. at 1940-1944.
92 CA rollo (Vol.I), pp. 164-165.
93 Id. at 329-332.
94 Id. at 2444-2445.
95 TSN, November 20, 2012, pp. 34-117; CA rollo (Vol. V), pp. 4511-4594.
96 Plotner, Becky, "Retracted Scientific Study On GMO Rats REPUBLISHED!!!!," Nourishing Plot <http://nourishingplot.com/2014/06/24/retracted-scientific-studv-on-gmo-rats-republished/> (visited last December 6, 2014); Plotner, Becky, "GMO Rat Study Forcibly Retracted," Nourishing Plot <http://nourishingplot.com/2014/01/05/gmo-rat-study-forcibly-retracted/> (visited last December 6, 2014).
97 Id.; "Republication of the Seralini study: Science speaks for itself," <http://www.gmoseralini.org/republication-seralini-study-science-speaks/> (visited last December 6, 2014).
98 Anne Ingeborg Myrh and Terje Traavik, "The Precautionary Principle: Scientific Uncertainty and Omitted Research in the Context of GMO Use and Release," <https://www.cbd.int/doc/articles/2008/A-00637.pdf> (visited last December 6, 2014).
99 James Clive, 2013. Global Status of Commercialized Biotech GM Crops: 2013. ISAAA Brief No. 46. ISAAA: Ithaca, NY.
100 Sonal Panse, "The Advantages & Disadvantages of Genetically Modified Food: Both Sides of the Debate," <http://www.brighthub.com/science/genetics/articles/23358.aspx> (visited last December 6, 2014).
101 Harry A. Kuiper, Gijs A. Kleter, Hub P.J.M. Noteborn and Esther J. Kok, "Assessment of the Food Safety Issues Related to Genetically Modified Foods, <http://www.data.forestry.oregonstate.edu/orb/BiotechClass/2004%20materials/5A-FOOD%20REG/Plant%20Journal%202001.pdf>.
102 Joint FAO/WHO Biotechnology and Food Safety Report, 1996, p. 4.
103 World Health Organization (WHO), "Safety Aspects of Genetically Modified Foods of Plant Origin," <http://www.fao.org/fileadmin/templates/agns/pdf/topics/ec_june2000_en.pdf> (visited last December 6,2014).
104 Id. at 5.
105 Mae-Wan Ho and Ricarda A. Steinbrecher, "Fatal Flaws in Food Safety Assessment: Critique of The Joint FAO/WHO Biotechnology and Food Safety Report," Accessed at <http://www.psrast.org/fao96.htm> (visited last December 6, 2014).
106 John Fagan, Ph.D., "The Failings of the Principle of Substantial Equivalence in Regulating Transgenic Foods," <http://www.psrast.org/jfsbqsht.htm> (visited last December 6, 2014).
107 Marianna Schauzu, "The Concept of Substantial Equivalence in Safety Assessment of Foods Derived From Genetically Modified Organisms" AgBiotech Net (April 2000) <http://www.bfr.bund.de/cm/349/schauzu.pdf> (visited last December 6, 2014.)
108 R.H. Phipps and J.R. Park, "Environmental Benefits of Genetically Modified Crops: Global and European Perspectives on their Ability to Reduce Pesticide Use," Journal of Animal and Feed Sciences (January 31, 2002), <http:///cib.org.br/wp-content/uploads/2011/10/estudos.cientificos_ambiental_32.pdf> (visited last December 6,2014).
109 <http://responsibletechnology.org/docs/gm-crops-do-not-increase-yields.pdf>.
110 Human Rights Advocates, "Promoting Right to Food Through Food Sovereignty," <http://www.humanrightsadvocates.org/wp-content/uploads/2014/03/HRC-25-Promoting-Right-to-Food-Through-Food-Sovereignty.pdf> (visited last December 6, 2014).
111 <http://ec.europa.eu/food/food/biotechnology/reports_studies/docs/It_effects_report_en.pdf>.
112 Prof. Dr. Ludwig Kramer, "Genetically Modified Living Organisms and the Precautionary Principle," <https://www.testbiotech.org/sites/default/files/GMO%20and%20precaution.pdf> (visited last December 7, 2014).
113 Ingeborg and Traavik, supra note 98, at 73, 80-81.
114 Marcelo Gortari, "GMOs, Risk and the Precautionary Principle," Public Policy & Governance Review (July 11, 2013) <http://ppgreview.ca/2013/07/ll/gmos-risk-and-the-precautionary-principle/> (visited last December 7, 2014).
115 "Open Letter from World Scientists to All Government Concerning Genetically Modified Organisms (GMOs)," <http://www.i-sis.org.uk/list.php> (visited last December 7, 2014).
116 International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD), "Agriculture at a Crossroads," <http://www.unep.org/dewa/agassessment/reports/IAASTD/EN/Agriculture%20at%20a%20Crossroads_Global%20Report%20(English.pdf> (visited last December 7,2014).
117 "The Case for a GM-Free Sustainable World - A Summary," <http://www.i-sis.org.uk/ispr-summary.php> (visited last December 7, 2014.).
118 Id.
119 Supra note 116.
120 International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD), "Biotechnology and Sustainable Development," <www.biosafety-info.net/file_dir/4542994024ca566872c339.pdf> (visited last December 7, 2014).
121 "No scientific consensus on safety of genetically modified organisms," <http://phys.org/news/2013-10-scientific-consensus-safety-genetically.html> (visited last December 7, 2014).
122 European Network of Scientists for Social and Environmental Responsibility, "Statement: No scientific consensus on GMO safety," <http://www.ensser.org/increasing-public-information/no-scientific-consensus-on-gmo-safety/> (visited last December 7, 2014).
123 Citations omitted.
124 Walden Bello, "GMO Wars: The Global Battlefield," Foreign Policy in Focus and TheNation.com (October 28, 2013), <http://fpif.org/gmo-wars-global-battlefield/> (visited last December 9, 2014).
125 Dr. John Samuels, "Genetically engineered Bt brinjal and the implications for plant biodiversity - revisited," <http://www.greenpeace.org/seaasia/ph/PageFiles/415937/GE-Bt-brinjal-revisited.pdf> (visited last December 9, 2014).
126 "CONFIDENTIAL: Final Report of the Technical Expert Committee (TEC)," <http://www.greenpeace.org/india/Global/india/report/2013/TEC-report.pdf> (visited last December 9, 2014).
127 Id. at 81-82.
128The National Biosafety Framework FOR the Philippines. Department of Environment and Natural Resources-Protected Areas and Wildlife Bureau 2004. Quezon City, Philippines.
129 Greenpeace, "Ties that bind: regulatory capture in the country's GMO approval process" <http://www.greenpeace.org/seasia/ph/Global/seasia/report/2007/10/ties-that-bind-regulatory-cap.pdf> (visited last December 7, 2014).
130 Approved on March 17, 2006.
131 EO 514, Sec. 2.1.
132 Id., Sec. 2.2.2.
133 NBF, Sec. 2.5.
134 Id., Sec. 2.7.
135 Id. 2.13.
136 "The Role of Government Agencies in the Philippine Environmental Impact System: Under the Revised Procedural Manual," <http://www.emb.gov.ph/portal/Portals/21/EIA/EIA%20FOLDER/For%20National%20Govemment%20Agencies.pdf> (visited last December 9, 2014).
137 Section 7.g, Revised Procedural Manual for DAO 2003-30 on the Overview of the Philippine EISS (PEISS).
138 RA 8550 (Philippine Fisheries Code), Sec. 12.
139Overview of the Environmental Impact Assessment Process, 25 September 2013. Accessed at <https://www.doe.gov.ph/microsites/ipo%20web/linked%20files/2013/MEIF2013/03_DENR_Procedures.pdf>.
140 Proclaiming Certain Areas and Types of Projects as Environmentally Critical and Within the Scope of the Environmental Impact Statement System Established Under Presidential Decree No. 1586. Issued December 14, 1981.
141 TSN, February 7, 2013, pp. 13-16, 18-20.
142 "GMOs, Risks and the Precautionary Principle" by Marcelo Gortari, supra note 114.
143 Principles 1, 2, 3 and 4. <http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid:=1163> (visited last December 7, 2014).
144 The Global Development Resource Center, "The Rio Declaration: Principle 15 - The Precautionary Approach," <http://www.gdrc.org/u-gov/precaution-7.html> (visited last December 9, 2014).
145 "The Precautionary Principle," World Commission on the Ethics of Scientific Knowledge and Technology (COMEST). March 2005. <http://unesdoc.unesco.org/images/0013/001395/139578e.pdf>.
146 ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.
147 Id.
148 Ingeborg Myhr and Traavik, supra note 98.
149 Anne Ingeborg-Myhr and Terje Traavik, "Genetically Modified (GM) Crops: Precautionary Science and Conflicts of Interests" <http://www.pages.drexel.edu/~ls39/peer_review/Myhr.pdf> (visited last December 9, 2014).
150 Department of Environment and Natural Resources - Protected Areas and Wildlife Bureau, "The National Biosafety Framework for the Philippines," <http://www.unep.org/biosafety/files/PHNBFrep.pdf> (visited last December 9, 2014).cralawlawlibrary
VELASCO,JR., J.:
[A]ll agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms and entities shall prepare, file and include in every action, project or undertaking which significantly affects the quality of the environment a detailed statement on —Thereafter, to give more teeth to the EIS requirement, PD 15865 was issued on June 11, 1978, establishing the EIS System (PEISS), instituting a systems-oriented and integrated approach to the filing of the EIS in coordination with the whole environmental protection program of the State.6 Section 2 thereof states:(a) the environmental impact of the proposed action, project or undertaking;Before an environmental impact statement (EIS) is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same.
(b) any adverse environmental effect which cannot be avoided should the proposal be implemented;
(c) alternative to the proposed action;
(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or non- renewable resources, a finding must be made that such use and commitment are warranted.
There is hereby established an Environmental Impact Statement System founded and based on the environmental impact statement required under Section 4 of Presidential Decree No. 1151, of all agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms and entities, for every proposed project and undertaking which significantly affect the quality of the environment.To reiterate, Section 4 of PD 1151, on the other hand, provides:
Environmental Impact Statements. Pursuant to the above enunciated policies and goals, all agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms and entities shall prepare, file and include in every action, project or undertaking which significantly affects the quality of the environment a detailed statement onAs part of the PEISS, Section 4 of PD 1586 provides that "the President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical." Pursuant thereto, Proclamation No. 2146 was issued on December 14, 1981, declaring certain areas7 and types of projects8 as environmentally critical and within the scope of the Environmental Impact Statement System established under PD 1586.9(a) the environmental impact of the proposed action, project or undertakingBefore an environmental impact statement is issued by a lead agency, all agencies having jurisdiction over, or special expertise on, the subject matter involved shall comment on the draft environmental impact statement made by the lead agency within thirty (30) days from receipt of the same.
(b) any adverse environmental effect which cannot be avoided should the proposal be implemented
(c) alternative to the proposed action
(d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or nonrenewable resources, a finding must be made that such use and commitment are warranted.
(a) Identify and evaluate potentials hazards involved in initiating genetic engineering experiments or the introduction of new species and genetically engineered organisms and recommend measures to minimize risks;Pursuant to its mandate, the NCBP published the first version of the Philippine National Biosafety Guidelines in 1991 (1991 Guidelines). Said Guidelines governs regulating the importation, transfer and use of GMOs and potentially harmful exotic species in the Philippines, with focus on potentially hazardous work performed under contained conditions. Since the publication of the first edition, the NCBP has received and evaluated more than eighty (80) project proposals, all of which were to be performed under contained conditions. However, recognizing the rapid advances in other countries in respect of field trials of selected GMOs, the NCBP decided to look into the adequacy and relevance of the Guidelines, particularly as it relates to planned release.
(b) Formulate and review national policies and guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic materials for the protection of public health, environment and personnel and supervise the implementation thereof;
(c) Formulate and review national policies and guidelines in risk assessment of work biotechnology, and supervise the implementation thereof;
(d) Develop working arrangements with the government quarantine services and institutions in the evaluation, monitoring, and review of projects vis-a-vis adherence to national policies and guidelines on biosafety;
(e) Assist in the development of technical expertise, facilities and other resources for quarantine services and risk assessments;
(f) Recommend the development and promotion of research programs to establish risk assessment protocols and assessment of long-term environmental effects of biological research covered by these guidelines;
(g) Publish the results of internal deliberation and agency reviews of the committee;
(h) Hold public deliberations on proposed national policies, guidelines and other biosafety issues;
(i) Provide assistance in the formulation, amendment of pertinent laws, rules and regulations; and
(j) Call upon the assistance of any government agency, department, office, bureau including government-owned and/or controlled corporations.15ChanRoblesVirtualawlibrary
2.2.1. Strengthen the existing science-based determination of biosafety to ensure the safe and responsible use of modern biotechnology so that the Philippines and its citizens can benefit from its application while avoiding or minimizing the risks associated with it;In order to put these objectives into action, EO 514 strengthened the NCBP through the expansion of its composition25 and functions.
2.2.2. Enhance the decision-making system on the application of products of modern biotechnology to make it more efficient, predictable, effective, balanced, culturally appropriate, ethical, transparent and participatory; and
2.2.3. Serve as guidelines for implementing international obligations on biosafety.
The NCBP shall be composed of the following: The Secretaries of the Departments of Science and Technology, Agriculture, Health, Environment and Natural Resources, Foreign Affairs, Trade and Industry, and Interior and Local Governments or their designated representatives.This new NCBP was then directed to, among others:
The DOST Secretary shall be the permanent Chair; A consumer representative appointed by the President from a list submitted by nationally recognized consumer organizations, serving for a term of three (3) years, renewable for another term;
A community representative from the farmers, fisherfolk and indigenous sector appointed by the President from a list submitted by nationally recognized sectoral organizations, serving for a term of three (3) years, renewable for another term;
4.2.4 A representative from industry appointed by the President from a list submitted by the Secretary of Trade and Industry, serving for a term of three (3) years, renewable for another term; and,
A biological scientist, physical scientist, environmental scientist, health scientist, and social scientist to be endorsed by the DOST Secretary upon the recommendation of recognized professional and collegial bodies such as the National Academy of Science and Technology (NAST) and the Philippine Social Science Council (PSSC), and appointed by the President, each serving for a term of three (3) years, renewable for another term.
4.6 Powers and Functions of the NCBP. As the lead body in implementing the NBF, the NCBP shall have the following powers and functions:chanRoblesvirtualLawlibraryAs to its effect on existing policies, rules, and issuances, specifically DA AO No. 8, s. 2002, it is well to note that Section 830 of EO 514 specifically provided that DA AO No. 8, s. 2002 remains to be in force and effect.
4.6.1 Biosafety Policy Functions
Assist concerned departments and agencies in formulating, reviewing, or amending their respective policies, measures and guidelines on biosafety;
Hold public deliberations on proposed national policies, guidelines, and other biosafety issues;
4.6.1.3 Provide assistance in the formulation, amendment of pertinent laws, rules and regulations;
4.6.1.4 In coordination with concerned departments and agencies and consistent with the requirements of transparency and public participation as provided in Sections 6 and 7 of the NBF, shall take the lead in periodically reviewing the NBF; Issue detailed guidelines on the conduct of socio-economic impact evaluation of biosafety decisions; and,
Propose to Congress necessary and appropriate legislation.
4.6.2 Accountability Functions
4.6.2.1 Monitor the implementation of the NBF by concerned departments and agencies;
4.6.2.2 Ensure coordination among competent national authorities that have shared mandates;
4.6.2.3 Ensure that NCBP guidelines, and the principles and processes established in this Framework are complied with by concerned departments and agencies; and,
Review procedures for accountability in biosafety decision-making by competent national authorities, with particular emphasis on ensuring independence and impartiality in such decisions.
4.6.3 Scientific Functions
4.6.3.1 Facilitate the study and evaluation of biosafety research and control and minimize the concomitant risks and hazards associated with the deliberate release of regulated articles in the environment;
4.6.3.2 Identify and evaluate potential hazards involved in modern biotechnological experiments or the introduction of regulated articles and recommend measures to minimize risks;
4.6.3.3 Recommend the development and promotion of research programs to establish risk assessment protocols and assessment of long-term environmental effects of regulated articles;
4.6.3.4 Develop working arrangements with the government quarantine services and institutions in the evaluation, monitoring, and review of projects vis-a-vis adherence to national policies and guidelines on biosafety;
4.6.3.5 Review and develop guidelines in the risk assessment of regulated articles for contained use;
4.6.3.6 Assist other agencies in developing risk assessment guidelines and procedures of regulated articles for field trials and commercial release;
4.6.3.7 Review the appointment of the members of the Institutional Biosafety Committees created by institutions engaged in activities involving regulated articles, upon recommendation by their respective heads of institutions;
4.6.3.8 Publish the results of internal deliberations and agency reviews of the NCBP;
4.6.3.9 Hold, discussions on the comparative ecological, economic and social impacts of alternative approaches to attain the purposes/objectives of the proposed genetic modification products and/or services; and,
4.6.3.10 Perform such functions as may be requested by concerned departments and agencies.
4.6.4 Capacity Building Functions
4.6.4.1 Assist in the development of technical expertise, facilities, and other resources for quarantine services and risk assessments; and,
4.6.4.2 Take the lead in developing and implementing a national capacity- building program for biosafety.
No regulated article shall be released into the environment for field testing, unless: (i) a Permit to Field Test has been secured from the BPI; and (ii) the regulated article has been tested under contained conditions in the Philippines. x x xIt is important, however, to emphasize that despite the issuance of DA AO No. 8, s. 2002, the NBF, and the NCBP Guidelines, other statutory requirements or those required by agencies remain in full force and effect.31 This is bolstered by the fact that EO 514, as mentioned by the ponencia, requires the determination by the concerned departments or agencies of whether the Philippine Environmental Impact Assessment (EIA) System should be applied to biosafety decisions.32 EO 514 also requires the DENR, as a member of the NCBP, to ensure that environmental assessments are done and impacts identified in biosafety decisions.33
WHEREFORE, in view of the foregoing premises, Judgment is hereby rendered by us GRANTING the petition filed in this case. The respondents are DIRECTED to:The CA found that existing regulations issued by the DA and the DOST are insufficient to guarantee the safety of the environment and the health of the people. It likewise applied the precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases, stressing the fact that the "over-all safety guarantee of the bt talong" and whether it poses a threat to human health remain unknown. In view of said uncertainty, the CA upheld the primacy of the people's constitutional right to a healthful and balanced ecology.'
(a) Permanently cease and desist from further conducting bt talong field trials; and (b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing judgment of this Court.
No costs.
SO ORDERED.
SECTION 5. DECISION-MAKING PROCESSESThus, in case there was, indeed, doubt as to the applicability or non-applicability of the PEISS to biotechnology research, the DENR-EMB, in accordance with its mandate, should have observed such standard of precaution and applied the PEISS to field trials of GMOs by requiring from project proponents the prior securing of an ECC or a CNC.
Biosafety decisions shall be made in accordance with existing laws and the following guidelines:chanRoblesvirtualLawlibrary
Standard of Precaution. In accordance with Article 10 (par. 6) and Article 11 (par. 8) of the Cartagena Protocol on Biosafety, lack of scientific certainty or consensus due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a genetically modified organism on the environment, particularly on the conservation and sustainable use of biological diversity, and on human health, shall not prevent concerned government departments and agencies from taking the appropriate decision to avoid or minimize such potential adverse effects. In such cases, concerned government department and agencies shall take the necessary action to protect public interest and welfare.
On these premises, I vote to DENY the petition on the grounds that the project proponents failed to comply with the requirements under the PEISS and that the DENR-EMB failed to require from/he project proponents the securing of an ECC or a CNC prior to the field^testing of the Bt talong.
- herein project proponents to cease and desist from continuing any pending Bt talong field trials without first complying with other applicable environmental laws, including the PEISS; and
- the DENR-EMB to apply the PEISS to GMO field trials.
Endnotes:
1 Item 3.3, Section 3, EO 514, s. 2006.
2 Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.
3 Sub-item 3.3.2, Item 3.3, Section 3, EO 514, s. 2006.
4 Sub-item 3.3.12, Item 3.3, Section 3, EO 514, s. 2006.
5 Establishing An Environmental Impact Statement System Including Other Environmental Management Related Measures And For Other Purposes.
6 Philippine Judicial Academy, A Sourcebook on Environmental Rights and Legal Remedies, p. 58.
7B. Environmentally Critical Areas
1. All areas declared by law as national parks, watershed reserves, wildlife preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following conditions:chanRoblesvirtualLawlibrary
a. tapped for domestic purposes
b. within the controlled and/or protected areas declared by appropriate authorities
c. which support wildlife and fishery activities
11. Mangrove areas characterized by one or any combination of the following conditions:chanRoblesvirtualLawlibrary
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm floods;
e. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any combinations of the following conditions:chanRoblesvirtualLawlibrary
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
8A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries
b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants
II. Resource Extractive Industries
a. Major mining and quarrying projects
b. Forestry projects
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery Projects
1. Dikes for/and fishpond development projects
III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges
9Republic v. City of Davao, G.R. No. 148622, September 12, 2002, 388 SCRA 691.
10 Section 4, PD 1586.
11 Sec. 5, PD 1586.
12Evolution of the Philippine Biosafety System, Department of Agriculture-Bureau of Plant Industry, http://biotech.da.gov.ph/. Last accessed, December 7, 2015.
13] http://www.ncbp.dost.gov.ph/19-guidelines/24-executive-order-no-430-s-1990. Last accessed November 23, 2015.
14 WHEREAS, the impact qf the new technologies on health, agriculture, chemical and pharmaceutical, and environment and natural resources has been a continuing worldwide concern of many countries;
WHEREAS, biotechnology ha? high potential to improve the quality of human life may have concomitant risks and hazards to health Safety, the environment and society;
WHEREAS, the hazards associated with the processes and the products of researches in biotechnology may be minimized, if hot totally eliminated, by the different containment levels and procedures observed in the laboratories and greenhouses;
WHEREAS, most of the risks are associated with the field testing and eventual deliberate release of genetically manipulated/engineered orjganisms into the environment;
WHEREAS, there is a need to iconstitute a body that shall undertake the study and evaluation of existing laws, policies and guidelines bn biotechnology and its related matters, and recommend such measures for its effective utilization and prevention of possible pernicious effects in the environment. (EO 430, s. 1990)
15 Section 4, EO 430 s. 1990.
16NCBP Monograph dated May 15, 1998.
17 SECTION 9. REPEALING CLAUSE All provisions of the Philippine Biosafety Guidelines (1991 edition), particularly Part III, paragraph 2.3 (Field release of Regulated Materials), which are inconsistent with this Monograph are hereby repealed.
18 p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
19 Id.
20 Item A, Section 2, DA AO No. 8, s. 2002.
21 Item B, Section 2, DA AO No. 8, s. 2002.
22 pp. 29-30, Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
23 p. 15, Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
24 WHEREAS, there is a need to enhance the existing biosafety framework to better respond to the challenges presented by further advances in modern biotechnology and to comply with the administrative requirements of the Cartagena Protocol on Biosafety.
25 Sub-section 4.2 (Composition of the NCBP), Section 4 (Administrative Framework) (EO 514).
26 SECTION 4. ADMINISTRATIVE FRAMEWORK. The administrative mechanism for biosafety decisions shall be as follows:chanRoblesvirtualLawlibrary
(a) National scientific and technical biosafety standards and standards on methods and procedures for ensuring biosafety in the country shall be set by the NCBP consistent with existing laws: Basic policies on addressing public interests on biosafety shall be developed by the NCBP, provided the same are consistent with law and if such policies are found insufficiently addressed in existing mandates and regulations of pertinent agencies;
(b) Member-agencies of the NCBP shall continue to perform their regulatory functions in accordance with their legal mandates, provided that their policies and programs relating to biosafety shall be discussed in the NCBP for purposes of harmonization with other agencies' functions;
(c) Other concerned agencies shall coordinate with NCBP on matters that may affect biosafety decisions as provided in Sections 4.7 to 4.14;
(d) Administrative functions required under the Cartagena Protocol on Biosafety shall be performed by agencies as provided in Section 4.14 and 4.15; and,
(e) The role of stakeholders and the general public shall be recognized and taken into account as provided in Sections 6 and 7. (EO 514)
27 Item 4.8, Section 4 [Administrative Framework], EO 514.
28 Item 4.7, Section 4 [Administrative Framework], EO 514.
29 Item 4.9, Section 4 [Administrative Framework], EO 514.
30 Section 8. Repealing and Amending Clause. All orders, rules and regulations or parts thereto which are inconsistent with any of the provisions of this Order are hereby repealed or amended accordingly. For the avoidance of doubt, the following issuances, unless amended by the respective issuing departments or agencies, shall continue to be in force and effect: Department of Agriculture Administrative Order No. 008, s. 2002; the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except for provisions on potentially harmful exotic species which are hereby repealed; and all Bureau of Food and Drugs issuances on products of modern biotechnology.
31 The NCBP reviews proposals on modern biotechnology applications for the benefit of the final approving bodies (agencies which have regulatory functions on specific areas such as the Department of Agriculture's Bureau of Plant Industry or the Department of Health or the Department of Environment and Natural Resources which are official members of the NCBP). The NCBP's actions of "approval" or "disapproval" of biotechnology applications is restricted to "research and development, technical aspects (whether or not, on the basis of existing science, safety risk are considered acceptable); scientific advice (i.e., it is directed to pertinent line agencies to provide them a basis for acting on proposed applications; its action ("approved" or "disapproved") is not a final permission to do the application; its action does not preclude any other requirements of laws or by line agencies; final permission is to be granted by appropriate line agencies." [Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009), p. 15]
32 Role of Environment Impact Assessment. The application of the EIA System to biosafety decisions shall be determined by concerned departments and agencies subject to the requirements of law and the standards set by the NCBP. Where applicable and under the coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on the matter. [Item 5.3, Section 5, EO 514].
33 Item 4.9, Section 4 [Administrative Framework], EO 514.
34 Id.
35 Item 3.3 [Definitions], Section 3 [Scope, Objectives and Definitions], EO 514.
36See List of Covered Projects of the Philippine E1S System, item (g), Revised Procedural Manual for DENR AO No. 30 s. 2003 [DAO 03-30].
37Biosafety Regulations in the Philippines: A Review of the First fifteen Years, Preparing for the Next Fifteen, A Report of the National Committee on Biosafety of the Philippines (NCBP), by the National Academy on Science and Technology (NAST), Department of Science and Technology (DOST), NCBP, and the Program for Biosafety Systems (2009).
38 Principle 15 - 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.
39 Article 1 [Objective] - In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.
40 6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.
41 8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard'to the import of that living modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize such potential adverse effects.
42 Item 2.6, EO 514.
43Overview of the Philippine EIS System (PEISS), Revised Procedural Manual for DENR AO No. 30 s. 2003, p. 3 [DAO 03-30].
44 Id.cralawlawlibrary
LEONEN, J.:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.Traditionally, these provisions articulate the doctrine that health and ecological concerns are proper purposes of regulation and, therefore, can be the basis of the state's exercise of police power.17 Having constitutionally ordained goals and principles are, per se, compelling state interests.18
Section 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.
There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.This exacting level of scrutiny has been considered in several instances in recent jurisprudence. In Estrada v. Escritor,21 this court required the state, through the Office of the Solicitor General, to show that the means adopted to pursue the state's interest of preserving the integrity of the judiciary by maintaining a high standard of morality and decency among its personnel was the least restrictive means vis-a-vis respondent's religious freedom. More recently, our Decisions in Diocese of Bacolod v. Commission on Elections22 and Social Weather Stations v. Commission on Elections23 considered the propriety of measures adopted to regulate speech in the context of political exercises.
Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications based on race or gender but not when the classification is dnfvvn along income categories.20 (Citations omitted)
Section 1. No person shall be deprived of life, liberty or property without due process of law.This norm is phrased as a traditional limitation on the powers of the state. That is, that the state's inherent police powers cannot be exercised arbitrarily but must be shown to have been reasonable and fair.24
Consciousness can be defined as "the way people conceive of the 'natural' and normal way of doing things, their habitual patterns of talk and action, and their commonsense understanding of the world."29ChanRoblesVirtualawlibraryLegal consciousness, on the other hand, is simply "all the ideas about the nature, function and operation of law held by anyone in society at a given time."30 This means that the culture and framework of defining incentives and making choices among our consumers also depend on the content .of the law and its interpretation in administrative regulatory issuances and judicial decisions.
Endnotes:
1 Ponencia, p. 41.
2 Id. at 11.
3 DA Adm. Order No. 8 (2002), sec. 1(E):chanRoblesvirtualLawlibrary
E. "Contained Use" means the use of a regulated article for research and development inside a physical containment facility intended to limit its contact with, and to provide for a high level of safety for, the general population and the environment and which has been inspected and approved by NCBP.
4 DA Adm. Order No. 8 (2002), sec. 1(I):chanRoblesvirtualLawlibrary
I. "Field testing" means any intentional introduction into the environment of a regulated article for purposes of research and development and for which no specific physical containment measures are used to limit the contact of the regulated article with, and to provide for a high level of safety for, the general population and the environment. Field testing may be conducted in a single site or in multiple sites.
5 DA Adm. Order No. 8 (2002), sec. 6.
6 DA Adm. Order No. 8 (2002), sec. 7.
7 DA Adm. Order No. 8 (2002), sec. 9.
8 DA Adm. Order No. 8 (2002), first Whereas clause.
9 Exec. Order No. 430 (1990), otherwise known as Constituting the National Committee on Biosafety of the Philippines (NCBP) and for Other Purposes.
10 Exec. Order No. 514, sec. 2.1.
11 Rep. Act No. 8435, sec. 3(a).
12 Rep. Act No. 8435, sec. 111(5).
13 Rep. Act No. 10068, sec. 3(b) Organic agriculture includes all agricultural systems that promote the ecologically sound, socially acceptable, economically viable and technically feasible production of food and fibers. Organic agriculture dramatically reduces external inputs by refraining from the use of chemical fertilizers, pesticides and Pharmaceuticals. It also covers areas such as, but not limited to, soil fertility management, varietal breeding and selection under chemical and pesticide-free conditions, the use of biotechnology and other cultural practices that are consistent with the principles and policies of this Act, and enhance productivity without destroying the soil and harming farmers, consumers and the environment as defined by the International Federation of Organic Agriculture Movement (IFOAM); Provided, That the biotechnology herein referred to shall not include genetically modified organisms or GMOs. (Emphasis supplied)
14 Cartagena Protocol on Biosafety to the Convention on Biological Diversity <https://www.cbd.int/doc/legal/cartagena-protocol-en.pdf> (visited December 1, 2015).
15 DA Adm. Order No. 8 (2002), sixth Whereas clause.
16 Defined in DA Adm. Order No. 8 (2002), sec. 1(N).
17See Laguna Lake Development Authority v. Court of Appeals, G.R. No. 110120, March 16, 1994, 231 SCRA 292, 307-308 [Per J. Romero, Third Division].
18See for example Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> 50 [Per J. Leonen, En Banc], citing CONST., art. II, secs. 12 and 13; Soriano v. Laguardia, et al., 605 Phil. 43, 106 (2009) [Per J. Velasco, Jr., En Banc]. In Diocese of Bacolod, we stated:"Compelling governmental interest would include constitutionally declared principles. We have held, for example, that 'the welfare of children and the State's mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating . . . utterances in TV broadcast.'"19 601 Phil. 245 (2009) [Per J. Austria-Martinez, En Banc].
20 Id. at 282-283.
21 529 Phil. 110 (2006) [Per J. Puno, En Banc].
22 G.R. No. 205728, January 21, 2015, 50 [Per J. Leonen, En Banc].
23 G.R. No. 208062, April 7, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudcnce/2015/april2015/208062.pdf>[Per J. Leonen, En Banc].
24See City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308 [Per. J. Tinga, En Banc]; White Light Corp. v. City of Manila, 596 Phil. 444 (2009) [Per J. Tinga, En Banc].
25See Dissenting Opinion of J. Leonen in Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 207172, and 207563, April 8, 2014, 721 SCRA 146, 731-847 [Per J. Mendoza, En Banc] discussing that:chanRoblesvirtualLawlibrary
"The constitutional right to life has many dimensions. Apart from the protection against harm to one's corporeal existence, it can also mean the "right to be left alone". The right to life also congeals the autonomy of an individual to provide meaning to his or her life. In a sense, it allows him or her sufficient space to determine quality of life. A law that mandates informed choice and proper access for reproductive health technologies should not be presumed to be a threat to the right to life. It is an affirmative guarantee to assure the protection of human rights."
26See ADAM SMITH, THE WEALTH OF NATIONS (1776).
27 JOSEPH E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 215 (2000).
28 Id. at 223.
29 DAVID M. ENGEL, How Does Law Matter in the Constitution of Legal Consciousness? in HOW DOES LAW MATTER 112 (1998), citing SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING CLASS AMERICANS 5 (1990).
30 Id., citing David Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 STAN. L. Rev. 575, 592. He, however, refers to Sarat who "hastens to explain that he rejects the approach of 'radical Individualization,' that he studies consciousness rather than attitudes because the latter inappropriately presents 'a picture of persons influenced by a variety of factors, thinking, choosing, deciding autonomously how and what to think.'"
31 The United States' Federal Food, Drug, and Cosmetics Act initially coined the standard "reasonable certainty of no harm" with respect to food safety evaluations. See Daryl M. Freedman, Reasonable Certainty of No Harm: Reviving the Safety Standard for Food Additives, Color Additives, and Animal Drugs, 7 ECOLOGY L.Q. (1978). <http://scholarship.law.berkeley.edu/elq/vol7/iss2/2> (Last Visited: December 1, 2015). The Food and Agriculture Organization of the United Nations reiterated this standard in their GMO Food Safety Assessment: Tool For Trainers, p. 8. <http://www.fao.org/3/a-i0110e.pdf> (Last Visited: December 1, 2015).
32Parties to the Protocol and signature and ratification of the Supplementary Protocol <https://bch.cbd.int/protocol/parties/> (visited December 1, 2015).
33 Preambular clause in Exec. Order No. 514 (2006).
34 Cartagena Protocol on Biosafety to the Convention on Biological Diversity <https://www.cbd.int/doc/legal/cartagena-protocol-en.pdf> (visited December 1, 2015).
35 Cartagena Protocol, art. 23. PUBLIC AWARENESS AND PARTICIPATION. 1. The Parties shall: (a) Promote and facilitate puJfiic awareness, education and participation concerning the safe transfer, handling and use of living modified organisms in relation to the conservation and sustainable use of biological diversity, taking also into account risks to human health. In doing so, the Parties shall cooperate, as appropriate, with other States and international bodies; (b) Endeavour to ensure that public awareness and education encompass access to information on living modified organisms identified in accordance with this Protocol that may be imported.
2. The Parties shall, in accordance with their respective laws and regulations, consult the public in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information in accordance with Article 21.
3. Each Party shall endeavour to inform its public about the means of public access to the Biosafety Clearing-House.
36 Cartagena Protocol, art. 23.2.
37 Cartagena Protocol, art. 15.1. Risk assessments undertaken pursuant to this Protocol shall be carried out in a scientifically sound manner, in accordance with Annex III and taking into account recognized risk assessment techniques. Such risk assessments shall be based, at a minimum, on information provided in accordance with Article 8 and other available scientific evidence in order to identify and evaluate the possible adverse effects of living modified organisms on the conservation and sustainable use of biological diversity, taking also into account risks to human health.
38 Cartagena Protocol, Annex III(3).
39 Exec. Order No. 514, Whereas clause.
40 Exec. Order No. 514, sec. 4.1.
41 Exec. Order No. 514, sec. 6. ACCESS TO INFORMATION.
The right of the public and the relevant stakeholders to information related to biosafety decisions is recognized and shall always be respected in accordance with guidelines to be issued by the NCBP, which shall include, among others, the following:chanRoblesvirtualLawlibrary
6.1 Information on Applications. Concerned departments and agencies shall, subject to reasonable limitations to protect confidential information as provided below, disclose all information on such applications in a prompt and timely manner. Such departments and agencies may require applicants to provide the information directly to concerned stakeholders.
6.2 Confidential Information. In all applications for approvals, whether domestic or foreign, concerned departments and agencies shall ensure that it has procedures and regulations to determine and protect confidential information; Provided, however, that the concerned agencies may refuse declaring the confidentiality of such information if it is necessary to enable the concerned stakeholders to effectively conduct a scientific risk assessment.
6.3 Information on Biosafety Decisions. The public and stakeholders shall have access to all biosafety decisions and the information on which they are based, subject to limitations set in Section 6.2 of this Framework. Such decisions shall summarize the application, the results of the risk assessment, and other relevant assessments done, the public participation process followed, and the basis for approval or denial of the application.
6.4 Information on Risk Management, Product Monitoring, and Product Identification. All relevant stakeholders shall have access to information related to risk management and product monitoring. Information on product identification shall be provided to the general public.
42 Exec. Order No. 514, sec. 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate, and conduct public awareness, education, meaningful, responsible, and accountable participation. They shall incorporate into their respective administrative issuances and processes best practices and mechanisms on public participation in accordance with the following guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. Public participation shall apply to all stages of the biosafety decision-making process from the time the application is received. For applications on biotechnology activities related to research and development, limited primarily for contained use, notice of the filing of such application with the NCBP shall be sufficient, unless the NCBP deems that public interest and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. In conducting public participation processes, the following minimum requirements shall be followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which they have access. Such notice must be adequate, timely, and effective and posted prominently in public places in the areas affected, and in the case of commercial releases, in the national print media. In all cases, such notices must be posted electronically in the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should allow relevant stakeholders to understand and analyze the benefits and risks, consult with independent experts, and make timely interventions. Concerned departments and agencies shall include in their appropriate rules and regulations specific time frames for their respective public participation processes, including setting a minimum time frame as may be appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These could include formal hearings in certain cases, or solicitation of public comments, particularly where there is public controversy about the proposed activities. Public consultations shall encourage exchanges of information between applicants and the public before the application is acted upon. Dialogue and consensus-building among all stakeholders shall be encouraged. Concerned departments and agencies shall specify in their appropriate rules and regulations the stages when public consultations are appropriate, the specific time frames for such consultations, and the circumstances when formal hearings will be required, including guidelines to ensure orderly proceedings. The networks of agricultural and fisheries councils, indigenous peoples and community-based organizations in affected areas shall be utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public participation in writing or through public hearings, as appropriate, and which allow the submission of any positions, comments, information, analyses or opinions. Concerned departments and agencies shall include in their appropriate rules and regulations the stages when and the process to be followed for submitting written comments; and,
7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission of written comments. Public concerns as reflected through the procedures for public participation shall be considered in making the decision. The public shall be informed of the final decision promptly, have access to the decision, and shall be provided with the reasons and considerations resulting in the decision, upon request.
43 DA Adm. Order No. 8 (2002), Whereas clause.
44 DA Adm. Order No. 8 (2002), sec. 1(L).
45 DA Adm. Order No. 8 (2002), sec. 1(L).
46 Exec. Order No. 514, sec. 7.2.1.
47 Judicial Affidavit of Merle Bautista Palacpac dated Feb. 4, 2013, pp. 16-17, par. 56.
48 The term is often used in reference to businesses and corporations that mislead consumers about the business' environmental performance or the environmental benefits of a product. Magali A. Delmas and Vanessa Cuerel Burbano, The Drivers of Greenwashing <http://www.ioe.ucla.edu/media/files/Delmas-Burbano-CMR-2011-gd-ldh.pdf> (visited December 1, 2015).
49 Mother and Child Health: Research Methods, Chapter 1: Scientific Method 1 <http://www.oxfordjournals.org/our_journals/tropej/online/cechl.pdf> (visited December 1, 2015).
50 Id. at 3.
51 Id. at 4.
52 Id. at 6.
53 Detlef Bartsch, et al., Field Testing of Transgenic Plants in PLANT BIOTECHNOLOGY AND GENETICS, PRINCIPLES, TECHNIQUES, AND APPLICATIONS 313 (2008).
54 Petition of Environmental Management Bureau, et al., Annex "E".