EN BANC
G.R. No. 208702, May 11, 2021
CYNTHIA A. VILLAR, FORMER MEMBER, HOUSE OF REPRESENTATIVES, LONE DISTRICT OF LAS PIÑAS CITY [SUPPORTED BY THREE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED FORTY-NINE (315,849) RESIDENTS OF LAS PIÑAS CITY], Petitioners, v. ALLTECH CONTRACTORS, INC., PHILIPPINE RECLAMATION AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, ENVIRONMENTAL MANAGEMENT BUREAU AND CITIES OF LAS PIÑAS, PARAÑAQUE, AND BACOOR, Respondents.
D E C I S I O N
CARANDANG, J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court (Rules) assailing the Decision2 dated April 26, 2013 and the Resolution3 dated August 14, 2013 of the Court of Appeals (CA) in CAG.R. SP. No. 00014 filed by petitioner Cynthia A. Villar (Villar).
I. CONDITIONSFcaring that the proposed project will impede the flow of rivers of Las Piñas-Zapote and Parañaque which may expose several adjacent barangays to flooding and endanger its residents, then Representative Villar, now Senator, conducted an information drive regarding the proposed project and gathered 315,849 signatures of Las Piñas residents opposing the proposed project. On March 16, 2012, Villar, representing the 315,849 Las Piñas residents opposing the proposed project, filed a petition for the issuance of a writ of kalikasan before the Court. In asking the Court to enjoin the implementation of the proposed project, Villar invoked her constituents' right to a balanced and healthful ecology.
ENVIRONMENTAL MANAGEMENT
All commitments, mitigating measures and monitoring requirements, especially those contained in the EPRMP, particularly in the Environmental Management and Monitoring Plans (EMMoPs), including all their modifications and additional information as approved by the EMB, shall be instituted to minimize any adverse impact of the project to the environment throughout its implementation, including the following:
1. Implementation of a Coastal Ecosystem Management Plan/Program;
2. Undertake an effective and continuing Information, Education and Communication (IEC) Program to inform and educate all stakeholders, especially its local residents on the project's mitigating measures embodied in the EPRMP and the conditions stipulated in this certificate;
3. Implementation of a Social Development and Management Program;
4. The Proponent needs to align the Environmental Management Plan with the Manila Bay Coastal Strategy and submit the said revised plan within sixty (60) days from the receipt of this Certificate; and
5. The Proponent, to address flooding issues, shall undertake the consultation with the Local Government Units of Parañaque and Las Piñas in the preparation of the Revised Environmental Management Plan that shall include:chanroblesvirtualawlibrary5.1 Flood Monitoring PlanThe above requirements, together with the PRA Guidelines for Reclamation Works should be submitted Ninety (90) days upon the receipt of this Certificate.
5.2 Necessary Baseline Data
5.3 Mitigating Plan; and
5.4 IEC corresponding flooding issues
GENERAL CONDITIONS9. An Environmental Unit (EU) shall be established completely handle the environment related aspects of the project in addition to the monitoring requirements as specified in the Environmental Management Plan (EMP)/Environmental Monitoring Plan (EMoP). The EU shall:chanroblesvirtualawlibrary
- The project operations shall conform with the provisions of R.A. No. 6969 (Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990), R.A. No. 9003 (Ecological Solid Waste Act of 2000), R.A. No. 9275 (Philippine Clean Water Act of 2004), and R.A. No. 8749 (Philippine Clean Air Act of 1999) and other relevant environmental laws and regulations.
- Proper storm drainage system, concrete culverts, and other flood and erosion control measures needs, noise and air pollution control measures shall be provided to adequately protect the receiving water body from siltation, physicochemical/marine pollution, etc. and the surrounding communities from environmental degradation;
- The proponent shall set up the following:chanroblesvirtualawlibrary
8.1 A readily available Environmental Guarantee Fund (EGF) which can be replenished anytime to cover the following: a) Expenses for further environmental assessments[,] b) compensation, indemnification for whatever damages to life and property that may be caused by the project[,] c) rehabilitation and/ or restoration of areas affected by the project's implementation;The amount and mechanics of the EGF, EMF, and the establishment of the MMT shall be determined by EMB and the proponent in consultation with EMB, through an integrated Memorandum of Agreement (MOA) which shall be submitted to the EMB Central Office within sixty (60) days upon receipt of this Certificate;
8.2 A Multi-partite Monitoring Team (MMT) composed of representative(s) from the proponent, EMB, a local environmental Non-Government Organization (NGO), a representative from each barangay in the primary impact area, the LGUs where the project is situated, and other concerned government agencies shall be organized. The MMT should primarily oversee the compliance of the proponent with the Environmental Management and Monitoring Plan (EMMP), other commitments and mitigation measures that are contained in the Project EPRMP documents and the ECC conditions; and
8.3 A replenishable Environmental Monitoring Fund (EMF) to cover all costs attendant to the operation and monitoring activities of the MMT including but not limited to capability building, training, actual sampling and laboratory analysis. Said provisions must be consistent with the DAO 2003-30.9.1 Monitor actual project impacts [vis-a-vis] the predicted impacts and management measures in the EIS;10. Ensure that its contractors and subcontractors properly comply with the relevant conditions of this Certificate including those regulations covering the entire activity of the project.
9.2 Ensure that Monitoring and submission of reports to EMB (Central Office and NCR) are carried out as required;
9.3 Submit an Abandonment Plan one year prior to abandonment. It shall include rehabilitation measures/clean-up. Remediation of areas possibly contaminated with toxic substances and presentation of options on proposed alternative projects in the area; and
9.4 Submit the Geographical coordinates of the Project prior to project construction.
11. The proponent prior to project implementation shall coordinate with the Manila Bay Critical Habitat Management Council and PAWB to tackle impacts of the project to Las Piñas-Parañaque Critical Habitat and Ecotourism Area (LPPCHEA) and implement the recommendations of the said council.
II. RESTRICTIONS
12. No other activities should be undertaken other than what was stipulated in the EPRMP document. Expansion of the project/construction of other structures or any change in the activity beyond those stated in the EPRMP shall be subject to a new Environmental Impact Assessment; and
13. Transfer of Ownership of this project carries these same conditions and restrictions for which written notification must be made by herein grantee to EMB within fifteen (15) days from such transfer. 17
WHEREFORE, the petition is DENIED for lack of merit.In denying the petition for the issuance of a writ of kalikasan, the CA declared that the totality of the evidence proved that the proposed reclamation project underwent the required EIA review process in compliance with the requirements of Presidential Decree (P.D.) No. 158621 and that the submission of the EPRMP was proper and lawful.22 The CA found the claim of Villar that Alltech did not undergo the proper EIA review inaccurate because it submitted its EPRMP, a recognized form of EIA study.23 The CA held that Alltech's submission of its EPRMP was proper as it belongs to the project category that requires such kind of EIA study. The CA added that it was the DENR-EMB which instructed the submission of an EPRMP.24 The CA pointed out that in requiring an EPRMP, Alltech was even required to meet a higher standard. This standard was to preserve the environmental condition in the vicinity of the proposed project using as basis the higher quality of environment in 1990.25
IT IS SO ORDERED.20 (Emphasis in the original)
Villar failed to
establish the causal link between the alleged irregularities in the
issuance of Alltech's ECC to justify resorting to the extraordinary
remedy of filing a petition for a writ of kalikasan. |
No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. x x x64 (Emphasis supplied)In the current structure of the government, it is the DENR-EMB, under the authority of the DENR Secretary, that is authorized to issue ECCs.
Section 1. Nature of the Writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people's organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.The essential requisites for the issuance of a writ of kalikasan are: (1) there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. As a rule, the party claiming the privilege bears the onus of proving the requisites listed above.67
Any party aggrieved by the final decision on the ECC/CNC applications may, within 15 days from receipt of such decision, file an appeal on the following grounds:chanroblesvirtualawlibraryTherefore, as a rule, any of the perceived irregularities in the issuance of the proposed project's ECC should be the subject of an appeal to the proper reviewing authority instead of a petition for writ of kalikasan. Any alleged irregularity in the process undertaken to obtain the ECC should be threshed out in the proper forum before the appropriate reviewing authorities.The proponent or any stakeholder may file an appeal to the following:The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.
- Grave abuse of discretion on the part of the deciding authority, or
- Serious errors in the review findings.
Deciding Authority Where to file AppealEMB Regional Office Director Office of the EMB Director EMB General Office Director Office of the DENR Secretary DENR Secretary Office of the President
The writ of kalikasan is principally predicated on an actual or threatened violation of the constitutional right to a balanced and healthful ecology, which involves environmental damage of a magnitude that transcends political and territorial boundaries. A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must not only allege and prove such defects or irregularities, but must also provide a causal link or, at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. This must be so if we are to preserve the noble and laudable purposes of the writ against those who seek to abuse it.69 (Emphasis and underscoring supplied; italics in the original)Unfortunately, while petitioners raised alleged irregularities in the issuance of the ECC (i.e., the use of an improper form of assessment study, lack of public hearing and consultation, and absence of a project alternative), these are not material and necessary due to the nature of the proposed project. Therefore, no compelling reason was presented to warrant the intervention of the Court.
Alltech submitted the proper form of study required for the proposed project. |
b) For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for projects operating without an ECC but applying to secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project's environmental performance and its current Environmental Management Plan. This report is either an (6) Environmental Performance Report and Management Plan (EPRMP) for single project applications[.] x x x (Emphasis supplied; italics and underscoring in the original)Table 1-4, DAO No. 2003-30, states that an EPRMP is required for "Item I-B: Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC." From these definitions and tables, an EPRMP is the required EIA document type for an ECP-single project which is:chanroblesvirtualawlibrary
In Paje v. Casiño,72 the Court noted that DAO No. 2003-30 and the Revised Manual appear to use the terms "operating" and "existing" interchangeably.
- Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion);
- Operating but without ECCs;
- Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations; and
- Existing projects for modification or re-start up.
SUBJECT to the conditions and restrictions set out herein labeled as Annex A and Annex B. This Certificate supersedes/cancels ECC CO-9602-002-208C issued on September 16, 1996 by this Office. (Emphasis supplied)The statement accentuated above is a recognition of an existing ECC superseded by the ECC issued in favor of Alltech. This also bolsters the view that operations are intended to be restarted as contemplated in paragraph (b), subsection 8, section 1 of the Revised Procedural Manual DAO 03-30. Under the Revised Procedural Manual for DAO No. 2003-30, the type of EIA report for a project which had previously operated or existing with previous ECCs intended to be modified, expanded or restart operations is not an EIS but an EPRMP or PEPRMP.74 As explained by the DENR-EMB, the entire area of the proposed project was within the area of the previous ECC issued in favor of the PEA and Amari on September 16, 1996 covering 750 hectares.75
x x x The definitions in DAO 2003-30 and the Revised Manual, stating that the EPM1P is applicable to (1) operating/existing projects with a previous ECC but planning or applying for modification or expansion, or (2) operating projects but without an ECC, were not an exclusive list.In the present case, no grave abuse of discretion was proven to be attributed to the DENR-EMB in instructing the project proponent to file an EPRMP. Hence, it enjoys the presumption of regularity in the performance of its official duties. Based on its technical expertise, it found that the information provided in an EPRMP sufficiently addressed the environmental concerns of the government.
The afore-discussed provisions of Figure 2-4, in relation to Annex 2-1c, plainly show that the EPRMP can, likewise, be used as an appropriate EIA document type for a single, non-implemented project applying for a major amendment to its ECC, involving an increase in capacity or auxiliary component, which will exceed PDR (non-covered project) thresholds, or result in the inability of the EMP and ERA to address the impacts and risks arising from the modification, such as the subject project.
That the proposed modifications in the subject project fall under this class or type of amendment was a determination made by the DENR-EMB and, absent a showing of grave abuse of discretion, the DENR-EMB's findings are entitled to great respect because it is the administrative agency with the special competence or expertise to administer or implement the EIS System.
The apparent confusion of the Casiño Group and the appellate court is understandable. They had approached the issue with a legal training mindset or background. As a general proposition, the definition of terms in a statute or rule is controlling as to its nature and scope within the context of legal or judicial proceedings. Thus, since the procedure adopted by the DENR-EMB seemed to contradict or go beyond the definition of terms in the relevant issuances, the Casiño Group and the appellate court concluded that the procedure was infirm.
However, a holistic reading of DAO 2003-30 and the Revised Manual will show that such a legalistic approach in its interpretation and application is unwarranted. This is primarily because the EIA process is a system, not a set of rigid rules and definitions. In the EIA process, there is much room for flexibility in the determination and use of the appropriate EIA document type as the foregoing discussion has shown. To our mind, what should be controlling is the guiding principle set in DAO 2003-30 in the evaluation of applications for amendments to ECCs, as stated in Section 8.3 thereof: "[r]equirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the information necessary to assess the environmental impact of such changes."
This brings us to the next logical question, did the EPRMP provide the necessary information in order for the DENR-EMB to assess the environmental impact of RP Energy's request relative to the first amendment?
We answer in the affirmative.
x x x
At any rate, we have examined the contents of the voluminous EPRMP submitted by RP Energy and we find therein substantial sections explaining the proposed changes as well as the adjustments that will be made in the environmental management plan in order to address the potential environmental impacts of the proposed modifications to the original project design. These are summarized in the "Project Fact Sheet" of the EPRMP and extensively discussed in Section 4 thereof. Absent any claim or proof to the contrary, we have no bases to conclude that these data were insufficient to assess the environmental impact of the proposed modifications. In accordance with the presumption of regularity in the performance of official duties, the DENR-EMB must be deemed to have adequately assessed the environmental impact of the proposed changes, before granting the request under the first amendment to the subject ECC.
In sum, the Revised Manual permits the use of an EPRMP, as the appropriate EIA document type, for major amendments to an ECC, even for an unimplemented or non-implemented project with a previous ECC, such as the subject project. Consequently, we find that the procedure adopted by the DENR, in requiring RP Energy to submit an EPRMP in order to undertake the environmental impact assessment of the planned modifications to the original project design, relative to the first amendment to the ECC, suffers from no infirmity.
We apply the same framework of analysis in determining the propriety of a PDR, as the appropriate EIA document type, relative to the second amendment to the subject ECC.78 (Emphasis in the original; citations omitted; underscoring supplied)
A public hearing is not mandatory for the proposed project. |
5.3 Public Hearing / Consultation RequirementsIn this case, the records disclosed that despite not being mandated to conduct a public hearing, Alltech held a consultation on November 25, 2010 with representatives of concerned sectors such as the cities of Parañaque and Las Piñas, PRA, the EIA consultants, the EIA case handler and Review Committee.80 Identified stakeholders in the direct and indirect impact areas of the proposed project such as the Department of Tourism, the Partnerships for the Environmental Management of the Sea of Asia, and the United Cooperative Association of the Bulungan Fish Landing Site/Fisherman's Wharf likewise participated during the public consultation.81
For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. The public hearing/ consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA process.79 (Emphasis supplied)
The CA determined
that there is no actual or imminent threat that can be attributed to the proposed project that would prejudice the life, health, or property of
residents of the cities of Las Piñas and Parañaque. |
d. Environmental Compliance Certificate (ECC)-document issued by the DENR/EMB after a positive review of an ECC application, certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant negative environmental impact. The ECC also certifies that the proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan. The ECC contains specific measures and conditions that the project proponent has to undertake before and during the operation of a project, and in some cases, during the project's abandonment phase to mitigate identified environmental impacts.82Clearly, an ECC does not authorize the implementation of the proposed project. It is a planning tool that imposes restrictions that the proponent must diligently observe and duties that it must undertake to ensure that the right to a balanced and healthful ecology is protected. The proponent is expected to secure the pertinent permits and clearances from all concerned government agencies, such as those listed in Annex "B" of the ECC issued to Alltech, prior to the implementation of the project. The proponent will have to ensure compliance with all the conditions and requirements outlined in the ECC before it may commence the implementation of the proposed project.
As discussed during the Public Consultation, floodings are attributable to impairment in the flow of the Parañaque and Las Piñas rivers due to cloggings from garbage. There are no aspects of the construction and operations that would affect the rivers. Discharge channels are sufficiently provided to serve as the drainage outfalls, as indicated in Figures 2.1 and 2.6. The ECC specifically contains the following conditions which are being integrated in the [ongoing] engineering works, "8. The construction of two outlet channels for the Paranaque River Basin and Las Piñas, Zapote River basin shall be implemented and maintained to improve drainage of the said rivers. Inland channel separating the reclamation and the mainland shall also be constructed and maintained to serve as reservoir and drainage of flood waters and high/low tide from the two rivers; "86 (Italics in the original; emphases and underscoring supplied)Based on the Conceptual Drainage System Plan shown in Figure 3.4 of the EPRMP,87 no stream or river volumetric flows are affected since the outflow is Manila Bay.88 The drainage outfall of treated water is Manila Bay itself.89 Flooding will not be caused by the proposed project because:chanroblesvirtualawlibrary
Major impacts from reclamation activities would arise if a river system or a drainage system would be restricted or blocked. This is not the case with this particular project. As may be seen from Project Development Plan Map in Figure 2.4, pages 2-10, the final outflow Parañaque River to Manila Bay all remain unimpeded due to the provision of a River outlet fall while that of Las Piñas River will be unobstructed. Further the drainage outfalls of the project will be the Manila Bay and away from these Rivers.In addition, the findings in Tricore's report were refuted by the measures that Alltech intends to adopt in order to avoid or reduce potential adverse impact of the proposed project. Among the engineering interventions proposed by Alltech are river flood control and drainage improvement works. These measures have been designed to anticipate a fully-urbanized Parañaque and Las Piñas in year 2020.91 In the Flood Studies and Design Parameters92 submitted by Peter Suchianco, Project Director of Alltech, the constructional tabulated93 as follows:chanroblesvirtualawlibrary
Also since only 635.14 hectares of the bay, portion of which had been previously reclaimed will be reclaimed out of a total 180,000 hectares of Manila Bay surface area (or 0.3%) the impacts are minimal. The incremental impact arising from the reduction of the reclamation area further reduces flooding concerns arising from the project.90
On the other hand, the constructional features of the proposed improvement works on drainage are as follows:94chanrobleslawlibrary
River Stretch Design Discharge (c.u/sec) Length (Meter) Width (Meter) Cross-Section Proposed Structures Las Piñas River 250-220 6.395 50-30 Single Trapezoidal Revertment Parapet Wall Embankment South Parañaque
(including Dongalo River) 630-200 6,500 70-30 Single Trapezoidal Revertment Parapet Wall Embankment
Bulkhead structures will also be installed. In order to prevent excessive underground water pressure from storm run-off, a drainage system will be installed behind the bulkhead walls. This measure will eliminate underground water pressure.95
Proposed Structure Quantity Dimension Pump Station 2 sites 19.8 cm Control Gate 8 sites 195 tons Channel Improvement 4,800m 15m-8.7m widening Open Channel Construction 150m 20m in width Cut-off Channel 500m 30m in width
QUESTION#14: Of the documents you spoke of a while ago, which of these did you use to form the basis for saying that the project proceeds from inadequate study?It must be clarified that the Final EPRMP of Alltech was submitted in December 2010, and not in August 2010. Therefore, the study of CEC-P, that was based on wrong and inaccurate data, cannot be considered a reliable reference in concluding that the proposed project lacked clear scientific study on the flooding hazards of reclamation and the appropriate mitigation measures to be adopted by the project proponent.
ANSWER#14: The main document scrutinized in the course of this study is the Environmental Performance Report Management Plan (EPRMP) submitted by Alltech to the DENR on (sic) August 2010.
QUESTION#15: Why base your study on Alltech's EPRMP?
ANSWER#15: There were other materials that we relied on as data for our study. However, as the final report on Alltech's proposed management of the environmental impacts before the granting of the March 2011 ECC, the EPRMP is the source document on how the proponent expects its project to affect the landscape and ecology of the project site and what measures it has taken or will take to minimize the adverse effects that may be brought by this change.97 (Underscoring supplied; emphasis in the original)
The Flooding Impact Assessment looked at how the proposed reclamation would affect the existing flooding risks in the Parañaque, Las Piñas and Zapote areas. In conducting the Flooding Impact Assessment, the following main factors of flooding were used: (a) rainfall runoff, or flooding caused by heavy rains running off into low-lying areas and rivers; and (b) coastal flooding, or flooding caused by storm surges. The water levels at the river mouth were compared between the predevelopment (baseline) and postdevelopment (reclamation) situation. The differences in water levels between the two scenarios were considered to be the incremental impact caused by the proposed reclan1ation. If the proposed reclamation does not cause any rise in the downstream water level during flood compared to the existing situation, there would not be any increased flooding further upstream. Computer models reflecting the present condition of the entire Manila Bay, including the site for the proposed reclamation, were set-up to establish the baseline condition. DHI used the available data on the frequency and maximum level of flooding in the area, as well as the data on rainfall levels. The effects of the proposed reclamation were evaluated using a computer model simulating the extreme rainfall runoff and extreme storm surge scenarios. A 3-dimensional hydrodynamic model of the entire Manila Bay was setup. Bathymetry information was taken from the electronic navigation chart with reference to the Philippines Chart Datum at Mean Low Low Water ("MLLW"). In order to establish the maximum water level conditions for the baseline situation, DHI obtained historical rainfall data for the Las Piñas-Parañaque area from the Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAGASA). DHI also used the data obtained by DCCD from the flood assessment survey it conducted in August 2011 regarding the frequency and maximum flood levels within a 1-km radius from the mouths of the Parañaque, Las Piñas, and Zapote Rivers. Secondary data from the local governments of Parañaque and Las Piñas were also incorporated in the DCCD data. Given that the Study was concerned with continuous simulation of the rainfall runoff response, it was necessary to generate rainfall time-series data. Rather than simply calculating peak discharge values as DCCD had done, DHI used a full rainfall-runoff time-series. The flood risk assessments were simulated using the worst case scenarios, i.e. with the highest astronomical tide coupled with an extreme storm surge or rainfall runoff event.DHI presented a comprehensive analysis of the consequences of the implementation of the proposed project. The findings of DHI is supported by the Flooding Impact Assessment and a Flushing Impact Assessment conducted that adds credibility and persuasive value to the proposed project.
The results of the assessment showed that for each of the rivers, the proposed reclamation, without any mitigating measure, would result in increases in the maximum water levels at the river mouths, particularly the Las Piñas-Zapote rivers, which would increase the risk of flooding during the heavy rainfall runoff event. In terms of flood risk during a storm surge, the proposed reclamation would act as a storm surge barrier for the Parañaque area. However, it has a funneling effect in the Las Piñas and Zapote areas, resulting in higher water levels in the northern end of the southern lagoon. Based on the results of the modeling, DHI proposed mitigation measures to avoid increasing the water levels or backwater impact between the predevelopment and postdevelopment conditions at the river mouths. Various combinations of the following mitigation measures were simulated in order to test their effectiveness:chanroblesvirtualawlibrary"1) Removal of the sandbar at the confluence of the Las Piñas and Zapote Rivers;Based on the results of the computer simulations of the effects of the proposed reclamation and of the possible mitigation measures, it was found that if the following mitigation measures were implemented, all the negative impacts are removed:chanroblesvirtualawlibrary
2) Dredging of the channel in front of Parañaque River to -6 meters MLLW;
3) Dredging the area between the Las Piñas and Zapote Rivers to -4 meters MLLW;
4) Building a flood or sluice gate at the Parañaque causeway joining the islands; and
5) Building a 100-meter buffer zone and lagoon infill.""Maintaining a minimum width of 160 meters in the Parañaque River extension, and dredging to deepen it by an average of 2 to 3 meters in order to improve drainage of the Parañaque River;According to DHI, if all the foregoing mitigation measures were implemented, including the removal of the sandbar, deepening and widening of the Parañaque river extension and the entrance to the southern lagoon, the proposed reclamation would significantly improve the drainage in the rivers, and remove all the potential negative impact of the proposed reclamation. The modeling simulations predicted that if all the mitigation measures were taken, there would be a positive impact for Parañaque and Zapote and no impact at Las Piñas in case of heavy rainfall. The positive impact indicates that the river mouth discharge condition would be improved, potentially reducing upstream flood risk. In the case of storm surges, the mitigating measures would have a positive effect on the Parañaque area, with reduced surge effects. While there would still be a small residual increase in water level at Las Piñas and Zapote areas, this would not be measurable in the field, resulting in zero impact, particularly since the Las Piñas/Zapote area is protected by the elevated Manila-Cavite expressway, which also acts as a storm surge flood barrier. The reclamation would also have a positive impact in protecting the western side of the lagoon which is presently eroding.
Dredging to deepen the entrance to the southern lagoon by an average of 1 meters, and removing the sandbar immediately offshore from the mouth of the Las Piñas River in order to improve the drainage of the Las Piñas and Zapote Rivers; and
Installation of a sluice gate, approximately 35 meters wide, in the causeway separating the two lagoons, in order to allow improved drainage and flushing of the lagoons."
In conclusion, the flooding impact assessment indicates that the proposed reclamation, with the recommended mitigation measures implemented, has negligible to positive impact for the Parañaque, Las Piñas and Zapote areas. The proposed reclamation, with the recommended mitigation measures, can bring positive impact to the river mouth passage conditions, and potentially reduce the risk of upstream flooding. During storm surge, the reclamation has a positive impact at the Parañaque area, protecting it and reducing the surge effects. At the Las Piñas site, the model showed the storm surge to increase the water level by 2 to 3 cm. However, this would not be detectable in the field and has zero impact towards coastal flooding as the area is protected by the elevated Manila-Cavite expressway. In addition, the reclamation will have positive impact in terms of protecting the western side of the lagoon which is presently eroding.
The DHI Flushing Impact Assessment looked into the potential changes to the flushing of the lagoons as a result of the proposed reclamation. Flushing time is a measure of water mass retention within the defined boundary, and provides a description of mass balance and transport dynamics in the lagoons. This is a good indicator of conditions in the lagoon, especially with regard to variations to salinity, suspended sediments, and contaminant transport. In other words flushing can be used to evaluate changes in water quality, such as salinity, nutrients, and even sediment exchange in the lagoons. The Flushing Impact Assessment was conducted to determine whether the proposed reclamation would have any negative impact on the residence or flushing time or water exchange rate in the lagoon system which may adversely affect the habitat, specifically the mangroves. Considering that the flushing is very sensitive to rainfall as well as to tidal conditions, two flushing scenarios were studied: (a) the wet season during the monsoon, with peak river runoffs; and (b) the dry season during the non-monsoon, with no discharges from the rivers. After the assessment, it was found that under the present conditions, during the dry season, both the lagoons are currently, poorly flushed due to the relatively weak tidal regime and shallow inter-tidal area. Under the present conditions, during the wet season, flushing is improved due to stronger tidal forcing and additional discharge into the lagoon from the rivers.
Based on the flushing model, the following mitigation measures were recommended to remove the negative impacts of the proposed reclamation, and to improve the current flushing condition in the lagoons:chanroblesvirtualawlibrarya. Dredging and maintaining the extension of the Parañaque river to a depth of -6 meters;During the dry season, if the suggested mitigating measure of installing a sluice gate is taken and it is kept open at all times, there is a slight negative impact in the lagoon due to the generally poor flushing during the dry season. However, if the suggested sluice gate is operated only during flood events or during optimal tide conditions and kept closed during the rest of the time, a positive effect could be achieved. During the wet season, the addition of the sluice gate significantly improves the flushing during the wet season. Provided the sluice gate and other mitigating measures are implemented, a positive overall impact on flushing can be expected from the proposed reclamation. The sluice gate can be operated to improve the flushing beyond the present day environmental condition of the lagoons.
b. Dredging and maintaining the Las Piñas/Zapote river mouths to a depth of -4meters;
c. Removal of the sand bar at the Las Piñas mouth; and
d. Provision of a 35-meter wide sluice gate and operational procedure for the causeway.
In conclusion, DHI's hydraulic studies show that, at worst, the proposed reclamation will have no flooding and flushing impacts provided the recommended mitigation measures are implemented. On the other hand, the proposed reclamation can improve the existing situation provided the recommended mitigation measures are taken. The DHI documented their study by preparing a Final Report on the Model Setups, Results, and Impacts Assessment of the Flooding and Flushing Study, entitled "Manila Bay Coastal 21 Flooding and Flushing Study Model Setups, Results and Impacts Assessment."98 (Emphasis supplied)
[I]n case of extreme events, no significant difference in flood levels between the scenario with the reclamation and the existing conditions is expected, if the uniform width of 160 meters up to the existing bridge for the Parañaque channel will be implemented adjacent to the reclamation project. The construction of the uniform 160-meter channel, however, entails giving up around 4.35 hectares of the Critical Habitat. The widening of the existing channel will actually prevent flooding. This is because the bird sanctuary/critical habitat constricts the channel flow from the Parañaque River. However, even by excluding entirely the Critical Habitat from the reclamation project, the local flooding being experienced can still be alleviated by freeing the rivers of garbage, debris, silt, informal settlers along the banks and other obstructions in the rivers. The street drainage system also needs to be improved especially in the low-lying areas where ponding occur. A major factor to the local flooding is the Manila Coastal Road, which is a road on reclaimed land along the coast and acts as a dike preventing the runoff from freely draining towards the bay. The adequacy of the culverts and widths of the existing bridges to the bay need to be evaluated as well. Forecasts on water elevations at the outlets of the Las Piñas-Zapote rivers were generated in case of extreme events.99 (Emphasis and underscoring supplied)Based on the foregoing, it is clear that the proposed project will not aggravate flooding as DCCD had already identified the factors that cause flooding in the areas affected. It is worthy to point out that a major factor to the local flooding is the Manila Coastal Road, which is a road on reclaimed land along the coast and acts as a dike preventing the runoff from freely draining towards Manila Bay. Poor drainage system, obstructions in rivers, and the geographical layout of the Manila Coastal Road are the identified contributing factors in the flooding problems in Las Piñas and Parañaque. With the implementation of the proposed project, and adopting the mitigating measures included in the proposed project. The communities will actually benefit as engineering interventions will be introduced to address the flooding issues.
The development of the Project, with a commitment to minimizing negative physical, biological and social environmental impacts at the design stage, and a wellconsidered EMMP during construction and operation can be expected to improve the environmental status of the LPPCHEA area when benchmarked against experience from similar international sites.106As have been already discussed, following the recommendation of Surbana, Alltech engaged the services of DHI to carry out hydrologic and hydrodynamic study to evaluate the potential flooding and t1ushing impacts of the proposed project.107 The flood risk assessments made by DHI were simulated using projected worst-case scenarios; i.e., with the highest astronomical tide coupled with an extreme storm surge or rainfall runoff event, extreme wind conditions, and climate change.108
The function of the extraordinary and equitable remedy of a Writ of Kalikasan should not supplant other available remedies and the nature of the forums that they provide. The Writ of Kalikasan is a highly prerogative writ that issues only when there is a showing of actual or imminent threat and when there is such inaction on the part of the relevant administrative bodies that will make an environmental catastrophe inevitable. It is not a remedy that is availing when there is no actual threat or when imminence of danger is not demonstrable. The Writ of Kalikasan thus is not an excuse to invoke judicial remedies when there still remain administrative forums to properly address the common concern to protect and advance ecological rights. After all, we cannot presume that only the Supreme Court can conscientiously fulfill the ecological duties required of the entire state.110 (Emphases supplied)The writ of kalikasan is not a remedy that may be availed when there is no actual threat or when the imminence of danger is not apparent to justify judicial intervention. To Our mind, the writ of kalikasan should only be availed in extraordinary circumstances that require the immediate attention of the Court and cannot be arbitrarily invoked when remedies are available in administrative agencies to properly address and resolve concerns involving protection of ecological rights.
The precautionary principle is not applicable to the present case. |
Section 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.111
There is no sufficient basis to hold that the proposed project will impinge on the viability and sustainability of LPPCHEA. |
ECC No. CO-1101-0001 is not rendered functus officio despite the lapse of five years from its issuance. |
d) ECC Validity and Expiry: Once a project is implemented, the ECC remains valid and active for the lifetime of the project ECC conditions and commitments are permanently relieved from compliance by the Proponent only upon validation by the EMB of the successful implementation of the environmental aspects/component of the Proponent's Abandonment/ Rehabilitation/ Decommissioning Plan. This pre-condition for ECC validity applies to all projects including those wherein ECC expiry dates have been specified in the ECC. However, the ECC automatically expires if a project has not been implemented within five (5) years from ECC issuance, or if the ECC was not requested for extension within three (3) months from the expiration of its validity. If the baseline characteristics have significantly changed to the extent that the impact assessment as embodied in the Environmental Management Plan (EMP) is no longer appropriate, the EMB office concerned shall require the Proponent to submit a new application. The EIA Report on the new application shall focus only on the assessment of the environmental component which significantly changed. (Emphasis in the original, underscoring supplied)
Participation of the country as a contracting party in the Convention on Wetlands does not proscribe the proposed project. |
3. The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated.119
Endnotes:
* No part, in view of prior participation in the assailed Decision and Resolution of the Court of Appeals.
1Rollo, Vol. I, pp. 61-154.
2 Penned by Associate Justice Apolinario D. Bruselas, Jr., with the concurrence of Associate Justices Rebecca De Quia-Salvador and Samuel H. Gaerlan (now a Member of the Court); id. at 9-55.
3 Id. at 56-59.
4 Id. at 161-162.
5Rollo, Vol. II, pp. 1569-1583.
6Rollo, Vol. I, p. 162.
7 Id. at 772-806, 866-881.
8 Id. at 810.
9 Id. at 811.
10 Id. at 81 0-811.
11 Id. at 977-989, 990-1003.
12 Id. at 162-163.
13 Id. at 163.
14 Id. at 547-669.
15 Id. at 163, 562.
16 Id. at 1019-1023.
17 Id. at 1021-1022.
18 Id. at 159.
19 Supra note 2.
20Rollo, Vol. I, p. 55.
21 Establishing an Environmental Impact Statement System, Including Other Environmental Management Related Measures and for Other Purposes.
22Rollo, Vol. I, p. 42.
23 Id. at 39.
24 Id.
25 Id. at 39-40.
26 Id. at 40.
27 Id.
28 Id. at 48.
29 Id. at 45.
30 Id.
31 Id. at 46-47.
32 Id. at 53.
33 Id. at 54.
34 Supra note 3.
35Rollo, Vol. I, p. 59.
36 Supra note 1.
37Rollo, Vol. I, pp. 102-114.
38 Id. at 116-119.
39 Id. at 119-123.
40 Id. at 123-127.
41 Id. at 127-129.
42 Id. at 129-138.
43 Id. at 138-141.
44 Id. at 141-144.
45 Id. at 144-147.
46Rollo, Vol. II, pp. 1245-1328.
47 Id. at 1263-1273.
48 Id. at 1273-1275.
49Rollo, Vol. IV, pp. 2781-2782.
50 Id. at 2795-2833.
51 Id. at 2814-2821.
52Rollo, Vol. IV, pp. 2739-2750.
53 Id. at 2745-2746.
54 An Act Declaring Protected Areas and Providing for their Management, Amending for this Purpose Republic Act No. 7586, otherwise known as the "National Integrated Protected Areas System (NIPAS) Act of 1992," and for Other Purposes.
55 Temporary rollo, pp. 1-2.
56 Id. at 2.
57 Id. at 3-4.
58 Id. at 4-7.
59 Id. at 7.
60 Id. at 7-10.
61 Id. at 1-7.
62 Id. at 4.
63 Id. at 4-5.
64 P.D. No. 1586, Section 4.
65 Id., Section 1.
66 Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC.
67Segovia v. The Climate Change Commission, 806 Phil. 1019, 1034 (2017).
68 752 Phil. 498 (2015).
69 Id. at 542.
70 Glossary, DAO No. 2003-30.
71 Id.
72 Supra note 65.
73Rollo, Vol. I, pp. 1019-1023.
74Rollo, Vol. IV, p. 2804.
75 Id. at 2804, 2861.
76Chavez v. Public Estates Authority, 433 Phil. 506, 560 (2002).
77 Supra note 65.
78 Supra note 65 at 611-616.
79 DAO No. 2003-30, Section 5.3.
80Rollo, Vol. I, pp. 1016-1018.
81 Id. at 130.
82 DAO No. 2003-30, Section 3(d).
83Rollo, Vol. I, p. 48.
84 Id. at 283.
85 Id. at 45.
86 Id. at 608.
87 Id.
88 Id.
89 Id. at 609.
90 Id. at 619.
91 Id. at 843-844.
92 Id. at 839-854.
93 Id. at 844.
94 Id.
95 Id. at 856.
96 Id. at 46-47.
97 Id. at 228-229.
98Rollo, Vol. I, pp. 26-32.
99 Id. at 22-23.
100Rollo, Vol. III, p. 1997.
101 Id. at 1997-1999.
102 Id. at 1993-2026.
103 Id. at 2005.
104 Id. at 2007.
105 Id. at 2026.
106 Id.
107 Id. at 2241.
108 Id. at 2245, 2258, 2263.
109 Supra note 65.
110 Id. at 714.
111 Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, supra note 63.
112Rollo, Vol. I, p. 53.
113 Republic Act No. 7586.
114 Republic Act No. 11038.
115 Id., Section 3.
116Rollo, Vol. I, pp. 585, 635.
117 Id. at 266.
118 Convention on Wetlands of International Importance Especially Waterfowl Habitat, July 13, 1994, , visited on February 4, 2021.
119 Id.
LEONEN, J.:
Regretfully but with great respect to the majority, I dissent.
The Department of Environment and Natural Resources should have required the proponent to submit an environmental impact statement, and not merely the Environmental Performance Report and Management Plan, as part of the Environmental Impact Assessment. The Court of Appeals should not have merely relied on the Department's findings to conclude that an environmental impact statement was not required. It should always take a harder look at the parties' submissions.
This case involves a reclamation project near a protected bird sanctuary and mangrove forest. Nearby residents have expressed concerns that the reclamation project may cause flooding in their neighborhoods. This must be weighed in a petition for the issuance of a writ of kalikasan.
In 2009, Alltech Contractors, Inc. (Alltech) submitted unsolicited proposals to Las Piñas and Parañaque for the development, financing, engineering, design, and reclamation of 381.26 hectares of land in Las Piñas and 174.88 hectares of land for Parañaque, both along the coast of the Manila Bay. Each city's Sangguniang Panlungsod later issued a resolution authorizing its mayor to explore the proposal under a Joint Venture Agreement. Later on, Las Piñas and Parañaque accepted the proposal and executed their respective Joint Venture Agreements.1
In 2010, the Philippine Reclamation Authority approved the Las Piñas and Parañaque Coastal Bay Project, subject to full compliance with laws, rules, and regulations. Alltech was then directed to submit an environmental performance report management plan, instead of an environmental impact statement, as basis for the issuance of an environmental compliance certificate.2
In December 2010, Alltech submitted its final Environmental Performance Report Management Plan, which involved the reclamation of around 203.43 hectares along the coast of Parañaque and 431.171 hectares along the coast of Las Piñas. This area was also within the 750-hectare site known as the Amari Coastal Bay Development Corporation, covered by ECC No. CO-9602-002-208C.3
On March 24, 2011, the Department of Environment and Natural Resources-Environmental Management Bureau issued ECC No. CO-1101-0001 covering the Las Piñas and Parañaque Coastal Bay Project.4
On March 16, 2012, then Las Piñas Representative Cynthia A. Villar (Villar), representing 315,849 residents, filed a Petition for a writ of kalikasan before this Court. She prayed that the project be enjoined as it will, among others, cause massive Hooding to the residents in the area.5
On April 24, 2012, this Court issued the writ against Alltech, Philippine Reclamation Authority, Environmental Management Bureau, and the cities of Las Piñas, Parañaque, and Bacoor, Cavite. The case was remanded to the Court of Appeals for the necessary hearings, reception of evidence, and rendition of judgment.6
On April 26, 2013, the Court of Appeals rendered a Decision7 denying the Petition for lack of merit. It found that the Environmental Performance Report Management Plan was also a form of environmental impact assessment and that an environmental impact statement was required only for new projects. Since the current reclamation project was already within the Amari Coastal Bay Development Project, the Court of Appeals found that the statement was unnecessary. It likewise noted that the submission of the Environmental Performance Report Management Plan, in lieu of an environmental impact statement, was the Environmental Management Bureau's decision, and not Alltech's. It pointed out that baseline data gathered in 1996 as basis for the Environmental Performance Report Management Plan did not make the data inaccurate or outdated, but instead required Alltech to meet a higher standard, since the basis would be the better quality of environment in 1990.8
After her Motion for Reconsideration had been denied, Villar filed this Petition. She argues, among others, that the issuance of the Environment Compliance Certificate for Las Piñas and Parañaque Coastal Bay Project was illegal since respondent Alltech did not submit the appropriate Environment Impact Assessment study. She likewise contends that the project impinges on the viability and sustainability of the Las PiñasParañaque Critical Habitat and Ecotourism Area, which was certified as a Wetland of National Importance in 2013.9
The majority, however, upheld the Court of Appeals Decision, finding:
In the present case, the EPRMP Alltech submitted was the proper form of study. As pointed out by the DENR-EMB, the proposed project is premised on the existence of a reclamation project covered by an ECC previously issued to the Philippine Estates Authority (PEA), now PRA, and Amari (ECC No. CO-9602-002-208C) issued in September 1996....
....
... Under the Revised Procedural Manual for DAO No. 2003-30, the type of EIA report for a project which had previously operated or existing with previous ECCs intended to be modified, expanded or re-start operations is not an EIS but an EPRMP or PEPRMP. As explained by the DENR-EMB, the entire area of the proposed project was within the area of the previous ECC issued in favor of the PEA and Amari on September 16, 1996 covering 750 hectares.
....
It is within the DENR-EMB's function and expertise to determine the category or classification of a proposed project as it is equipped with the knowledge and competence to resolve issues involving the highly technical field of EIS system....
....
As correctly determined by the CA, the EPRMP Alltech submitted is a technical EIS due to its comprehensiveness. The EIARC took .into consideration important issues such as flooding, the critical habitat, and the plight of fisherfolk who are residents within the project site itself.10 (Citations omitted)
There are seven (7) major EIA Report types for which preparation and application procedures have been provided in this Manual. Table 1-4 presents the report type per project sub-group.
a) For new projects: EIA-covered projects in Groups I, II and IV are required either an (1) Environmental Impact Statement (EIS), (2) Programmatic EIS (PEIS), (3) Initial Environmental Examination Report (IEER) or (4), IEE Checklist (IEEC), depending on project type, location, magnitude of potential impacts and project threshold. For non-covered projects in Groups II and III, a (5) Project Description Report (PDR) is the appropriate document to secure a decision from DENR/EMB. The PDR is a "must" requirement for environmental enhancement and mitigation projects in both ECAs (Group II) and NECAs (Group III) to allow EMB to confirm the benign nature of proposed operations for eventual issuance of a Certificate of Non-Coverage (CNC). All other Group III (non-covered) projects do not need to submit PDRs - application is at the option of the Proponent should it need a CNC for its own purposes, e.g. financing prerequisite. For Group V projects, a PDR is required to ensure new processes/technologies or any new unlisted project does not pose harm to the environment. The Group V PDR is a basis for either issuance of a CNC or classification of the project into its proper project group.
b) For operating projects with previous ECCs but planning for applying for clearance to modify/expand or re-start operations, or for projects operating without an ECC but applying to secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project's environmental performance and its current Environmental Management Plan. This report is either an (6) Environmental Performance Report and Management Plan (EPRMP) for single project applications or a (7) Programmatic EPRMP (PEPRMP) for co-located project applications. However, for small project modifications, an updating of the project description or the Environmental Management Plan with the use of the proponent's historical performance and monitoring records may suffice.16
138. The rationale behind requiring only an EPRMP for projects that have operated initially is to dispense with needless submissions of new studies as there presumably exists a number of useful data about the actual environmental impacts of a project as observed. Of course, there is no need to duplicate the tedious processes of an Environmental Impact Statement when the effects of a project have been recorded upon its implementation and where historical environmental performance and status of the project and its management plan are already known.
139. Given a project that had operated but stopped for a period of more than five (5) years, what is required is an environmental impact report on how well the mitigation and enhancement measures worked, using its environmental management plan ("EMP") as a yardstick. The convenience of preparing an EPRMP leaves the proponent to focus on ways to enact improvements on a project that has been implemented and has operated with plans for modification, expansion or a restart. This shortcut allows the proponent to suggest modifications and changes in the original plan to augment environmental performance without the costly distraction of undertaking a comprehensive environmental impact statement study.17
8. The construction of two outlet channels for the Parañaque River Basin and Las Piñas, Zapote River Basin shall be implemented and maintained to improve drainage of the said rivers. Inland channel separating the reclamation and the mainland shall also be constructed and maintained to serve as reservoir and drainage of flood waters and high/low tide from the two rivers.19 (Citation omitted)
As discussed during the Public Consultation, floodings are attributable to impairment in the flow of the Parañaque and Las Pi[ñ]as rivers due to cloggings from garbage. There are no aspects of the construction and operations that would affect the rivers. Discharge channels are sufficiently provided to serve as the drainage outfalls, as indicated in Figures 2.1 and 2.6. The EC specifically contains the following conditions which are being integrated in the ongoing engineering works, "8. The construction of two outlet channels for the Parañaque River Basin and Las Pi[ñ]as, Zapote River basin shall be implemented and maintained to improve drainage of the said rivers. Inland channel separating the reclamation and the mainland shall also be constructed and maintained to serve as reservoir and drainage of flood waters and high/low tide from the two rivers[.]"20
Major impact from reclamation activities would arise if a river system or a drainage system would be restricted or block[ed]. This is not the case with this particular project. As may be seen from Project Development Plan Map in Figure 2.4, page 2-10, the final outflow Paranaque River to Manila Bay all remain unimpeded due to the provision of a River outlet fall while that of Las Pi[ñ]as River will be unobstructed. Further the drainage outfalls of the project will be the Manila Bay and away from these rivers.
Also since only 635.14 hectares of the bay, portion of which had been previously reclaimed will be reclaimed out of a total 180,000 hectares of Manila Bay surface area (or 0.3%) the impacts are minimal. The incremental impact arising from the reduction of the reclamation area further reduces flooding concerns arising from the project.21
20. Any expansion or modification of the original plans not identified in the approved EIS shall undergo the EIS process.22
Issues, Concerns, Problems Response or Remarks 1. Nature of the ECC being applied for, whether it is for expansion of coverage of the old ECC earlier issued or application for a new one Has not been resolved. The committee at the onset has been appraised both by the accounts of the EIS, the proponents, and the case handler that the ECC being applied for is an expansion of coverage of the earlier ECC earlier [sic] issued by the EMB; this was during the first meeting. The new case handler who has taken over the work of the earlier case handler, however, has said that the ECC being applied for is being treated as a new one. 2. Need for new data Has only been resolved partly. All the members of the committee have noted that almost all of the data included in the draft EIS involve secondary material from the earlier EIS submitted; there has been explicit recommendation from Mr. Ben Francisco, member of the Rev Com and a fisheries expert, that data on the municipal fisheries be updated to at least 5 years or later. 3. Sea level rise due to climate change effect on the project Has not been resolved. It has been noted by at least two member of the Rev Com that sea level rise due to climate change is expected; it has been noted that it would be unfair for project proponents not to consider this at the onset of the project and at the same time to rely on the local government units involved to mitigate the effects later when these are already significantly affecting prospective locators. The proponents have been required to do a modeling on the matter but have only responded with the assurance that the Public Estates Authority is now preparing a master plan for all such projects in the entire Philippines with precisely this issue in view.
Private respondents do not deny that they did not apply for a new environmental compliance certificate prior to cutting or earth-balling the affected trees. Nonetheless, they argue that a separate environmental compliance certificate was not needed because their amended Environmental Compliance Certificate already covered the planned treecutting and earth-balling. What was required, they claim, was a treecutting and/or earth-balling permit, which they secured prior to the operations.
Private respondents are mistaken.
In the Environmental Impact Statement, submitted to support private respondents' application for an environmental compliance certificate for the SM Pines Resort Project, the project's construction phase saw the removal "of about 112 trees or 16.54% of the total number of major trees" from the proposed building site. Private respondents admitted that the removal of these trees will have "[m]edium, negative[,] and long term" impact and proposed the following mitigation measures[.]
....
On April 5, 2011, in relation to the application for an amended environmental compliance certificate, the Environmental Management Bureau-Cordillera Administrative Region requested additional information on the trees that would be affected by the Expansion Project[.]
....
Private respondent SM Investments Corporation complied by submitting a revised Environmental Performance Report and Management Plan. However, while the document contained a detailed inventory of the trees that would be affected by the Expansion Project, it did not provide relevant information as to whether the trees were planted or naturally grown.
The missing information is crucial to determine if the affected trees were part of a natural and residual forest, which means it was "composed of indigenous trees, not planted by man[,]" putting them under the coverage of Executive Order No. 23, series of 2011.
....
The necessity of a separate environmental compliance certificate is evident as the original Environmental Compliance Certificate only contemplated the removal of 112 trees for the entire SM Pines Resort Project. Meanwhile, the amended Environmental Compliance Certificate issued for the Expansion Project considered the environmental impact of the "additional parking levels, retail shops[,] and restaurants; and construction of a new 1,200 m3/day capacity Sewage Treatment Plant" but did not account for removing an additional 182 Benguet pine and Alnus trees.
Notably, the plan on the affected trees in the revised Environmental Performance Report and Management Plan, in support of the application for an amended environmental compliance certificate, seemed to be a mere afterthought, as shown by the lack of a solid strategy in place[.]25 (Citations omitted)
It does not escape this Court's attention that both the Regional Trial Court and the Court of Appeals missed private respondents' application for the cutting of 182 trees - in addition to 112 already allowed in the earlier Environmental Compliance Certificate - merely through an amended Environmental Compliance Certificate and almost nine (9) years after the original had been used. This Court also notes the lower court's nonchalant attitude when it failed to notice the Department of Environment and Natural Resources failure to distinguish indigenous long-standing pine trees from those recently planted when it issued the amended Environmental Compliance Certificate despite the existence of Executive Order No. 23.26
3. The eight-hectare mangrove plantation/research project area by the Ecosystems and Research Development Bureau (ERDB) shall be maintained and protected as stipulated under the Memorandum of Agreement (MOA) between the DENR and the Public Estates Authority (PEA) dated December 19, 1991. The reclamation project shall not impede its ecological function as breeding place for marine life including wildlife. It shall enhance the goal of the Livelihood Plan to ensure food security and self-sufficiency.27
If the uniform width of 160 m up to the existing bridge for the Parañaque Channel will be implemented adjacent to the reclamation project, no increase in flood levels from the current situation is expected. This is consistent with the parameters discussed in Boulevard 2000. However, if the Habitat will remain thereby constricting the channel flow from Parañaque River, the flood levels will expect to rise from 0.23 m to 0.27 m near the river mouth. There may be corresponding increase in the inland flooding which may be established by further studies. Around 4.35 ha of the Habitat Area will have to be given up if the uniform 160 m channel width will be built as planned in Boulevard 2000.36 (Citation omitted)
[I]n case of extreme events, no significant difference in flood levels between the scenario with the reclamation and the existing conditions is expected, if the uniform width of 160 meters up to the existing bridge for the Parañaque channel will be implemented adjacent to the reclamation project. The construction of the uniform 160-meter channel, however, entails giving up around 4.35 hectares of the Critical Habitat. The widening of the existing channel will actually prevent flooding. This is because the bird sanctuary/critical habitat constricts the channel flow from the Parañaque River. However, even by excluding entirely the Critical Habitat from the reclamation project, the local flooding being experienced can still be alleviated by freeing the rivers of garbage, debris, silt, informal settlers along the banks and other obstructions in the rivers. The street drainage system also needs to be improved especially in the low-lying areas where ponding occur. A major factor to the local flooding is the Manila Coastal Road, which is a road on reclaimed land along the coast and acts as a dike preventing the runoff from freely draining towards the bay. The adequacy of the culverts and widths of the existing bridges to the bay need to be evaluated as well. Forecasts on water elevations at the outlets of the Las Pi[ñ]as-Zapote rivers were generated in case of extreme events.37 (Citation omitted)
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.39
Endnotes:
1 Ponencia, p. 2.
2 Id. at 2-3.
3 Id. at 3.
4 Id.
5 Id. at 5.
6 Id.
7Rollo, pp. 158-205. The Decision was penned by Associate Justice Apolinario D. Bruselas, Jr. and concurred in by Associate Justices Rebecca De Guia-Salvador and Samuel H. Gaerlan (now an Associate Justice of this of the Third Division, Court of Appeals, Manila.
8 Id. at 89-190.
9 Ponencia, pp. 7-10.
10 Id. at 13-17.
11 Id.
12 "ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM, INCLUDING OTHER ENVIRONMENTAL MANAGEMENT RELATED MEASURES AND FOR OTHER PURPOSES," June 11, 1978.
13 Presidential Decree No. 1586 (1978), sec. 2.
14 Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(1)(a).
15 Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(2).
16 Revised Procedural Manual for Department Administrative Order No. 2003-30, sec. 1.0(8).
17Rollo, p. 106.
18Chavez v. Public Estates Authority, 433 Phil. 506 (2002) [Per J. Carpio, En Banc].
19Rollo, p. 84.
20 Ponencia, p. 19, Environmental Performance Report and Management Plan.
21 Id. at 19-20 citing rollo, p. 619.
22Rollo, p. 84.
23 Id. at 1004-1015.
24 G.R. No. 215988, April 10, 2019, 901 SCRA 261 [Per J. Leonen, En Banc].
25 Id. at 305-310.
26 Id. at 312.
27Rollo, p. 84.
28 Entitled "ESTABLISHING A CRITICAL HABITAT AND ECOTOURJSM AREA WITHIN THE COASTAL LAGOON OF LAS PIÑAS AND PARAÑAQUE."
29 Presidential Proclamation No. 1412 (2007), Fifth Whereas Clause.
30 Entitled "AMENDING PROCLAMATION NO. 1412 DATED 22 APRIL 2007, ENTITLED "ESTABLISHING A CRITICAL HABITAT AND ECOTOURISM AREA WITHIN THE COASTAL LAGOON OF LAS PI[Ñ]AS AND PARAÑAQUE," January 31, 2008.
31 Presidential Proclamation No. 1412-A (2008), sec. 2.
32 Entitled "Expanded National Integrated Protected Areas System Act of 2018."
33 Republic Act No. 11038 (2018), sec. 4.
34 Republic Act No. 11038 (2018), sec. 3(bb).
35 Ponencia, p. 29.
36Rollo, p. 96.
37 Ponencia, pp. 25-26.
38 Id. at 29.
39 CONST., art. XI, sec. 16.
40 A.M. No. 09-6-8-SC (2010).
41 A.M. No. 09-6-8-SC (2010), Rule 7.
42 A.M. No. 09-6-8-SC (2010), Rule 2, sec. 8 states:
SECTION 8. Issuance of Temporary Environmental Protection Order (TEPO). - If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.
The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant.
The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.
Section 9. Action on motion for dissolution of TEPO. - The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which the applicant may oppose, also by affidavits.
The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may stiffer and subject to the posting of a sufficient bond by the party or person enjoined.
CAGUIOA, J.:
The ponencia dismisses the petition for review on certiorari (the petition) filed by petitioner Cynthia Villar (petitioner) and affirms the Decision and Resolution of the Court of Appeals (CA), which denied the issuance of the privilege of the writ of kalikasan against the implementation of the Las Piñas and Parañaque Coastal Bay Project (proposed project) by respondent Alltech Contractors, Inc. (Alltech).
I concur with the ponencia. I write this Opinion to further elucidate on certain points raised by petitioner as well as by my esteemed colleagues.
Preliminary matters on the writ of kalikasan |
a case where there are serious and substantial misrepresentations or fraud in the application for the ECC, which, if not immediately nullified, would cause actual negative environmental impacts of the magnitude contemplated under the Rules, because the government agencies and LGUs, with the final authority to implement the project, may subsequently rely on such substantially defective or fraudulent ECC in approving the implementation of the project.6
On the proper form of Environmental Impact Assessment for the proposed project |
The subject coastal bay project cannot be simply considered as an entirely new project since the latter logically presuppose[s] the absence of any kind of existing environn1ental data at all. In other words, the above engineering and associated works already undertaken in the area generate cumulative environmental data which can serve as basis for the submission of an EPRMP. x x x
The PEA-Amari project had already been implemented and began operations as shown by the earth moving activities undertaken thereon. The activities conducted under the old ECC have actual cumulative environmental impact and data which can be used as basis in determining the effectiveness of the applicable measures implemented under the old ECC, in relation to the current coastal bay project.7 (Emphasis supplied)
x x x The statement in the Chairman's Report that there is an "issue as to whether the application [is] for an expansion coverage of the earlier ECC or for a new ECC" was only made to point out that this matter was among those considered by the EIARC and the EMB during the initial stages of the EIA process, and which were eventually resolved upon the issuance by the EMB of the EPRMP checklist. Thus, in the same paragraph, [the EIARC Chair] stated that all the shortcomings and issues are capable of being resolved and that the EIARC recommends the issuance of the ECC with conditions to be specified.9 (Emphasis and underscoring supplied)
Q My question: since it was an EPRMP checklist and you just explained to us that it is more simplified as to focus, my question is x x x: how can you say that any review that you would conduct based on this is sufficient in support [of] the issuance of an ECC by the review committee? A One, if you are using an EPRMP, it does not necessarily follow that you cannot add requirements to it, except for the requirement of social impact assessment. In other words, if the review committee deems it necessary to add more parameters coming from the old, technical EIS to be added to the EPRMP, we can do that, which we have done. In fact, in this case[,] because we have done that, if you will notice the EPRMP is much more thicker than the original EIS and there is no limit as to what we will require so long as we do not require public consultation or public hearing, so in our case so far as we are concerned, being the chair, I actually treated it as if it were a technical EIS. Q Why do you say so? A (1) because we were able to add considerations that would have been part only of the technical EIS but now we required them of the EPRMP; (2) I have been able to convince the proponent x x x to have at least public consultation x x x. Q You mentioned you took into consideration [matters that are] appropriate only for a technical EIS. What are those matters that you took into consideration? A Well, for example, when you have EPRMP, that means you have to focus more on what you think are the most important issues of the project; and given our assessment, we focused on, for example: flooding, for example: the critical habitat, for example: the plight of the fisherfolk who were the residents within the site itself x x x and focusing on these for example in the case of flooding we required more data, but they furnished data from [PAGASA], which did not satisfy us, because you cannot make predictions on micro term even the data they have submitted to us. So we require[d from] them additional information rather than waiting for all the statistics involved, we simply presumed that flooding would be [very important and vital for the project and therefore,] focusing on it[,] we required [that the] management plan must be compatible with Manila Bay guidelines [on] critical habitat management plan [and] with Boulevard 2000 plan - all of which also have to be compatible with the R.A.s [involved,] for example [C]lean [A]ir [Act, [C]lean [W]ater [A]ct, and the [B]uilding [C]ode. And so on and so forth.14 (Emphasis supplied)
[i]n 1990 compared to fairly recently, the environmental quality of the cited vicinity was better, and therefore if that would be the basis for the management of the environment, then, that means you have a higher quality of environment that the proponent have (sic) to keep. In other words, through time, whether we like it or not, our environment degrades, so what I am saying precisely because EPRMP is used, therefore the proponents have to keep their promise to keep the quality of environment x x x as of 1990 x x x.16 (Emphasis supplied)
On the DENR's determination of the proper EIA form for the proposed project |
In the present case, no grave abuse of discretion was proven to be attributed to the DENR-EMB in instructing the project proponent to file an EPRMP. Hence, it enjoys the presumption of regularity in the performance of its official duties. Based on its technical expertise, it found that the information provided in an EPRMP sufficiently addressed the environmental concerns of the government.
It is within the DENR-EMB's function and expertise to determine the category or classification of a proposed project as it is equipped with the knowledge and competence to resolve issues involving the highly technical field of EIS system. Alltech merely complied with the instruction of the DENR-EMB to submit an EPRMP. The project proponent should not be faulted for this as it is not in the position to substitute the assessment or technical opinion of the DENR-EMB with its own judgment. It is within the sphere of technical knowledge and expertise of the DENR-EMB, and not the Court nor the project proponent, to determine the appropriate EIA report to submit for a particular project.21
On the recommendation for the issuance of a Temporary Environmental Protection Order |
[T]his Court promulgated the Rules of Procedure for Environmental Cases, which provides for the issuance of the extraordinary writ of kalikasan. However, as the majority pointed out, the Las Piñas and Parañaque Coastal Bay Project has not yet begun construction. The Environmental Compliance Certificate's issuance does not mean approval to begin the reclamation project. There is, therefore, no evidence yet of imminent environmental damage that may be the subject of a writ of kalikasan.
There are, however, features of the Project which may need further study and approval. Thus, I recommend that this Court instead issue a [T]emporary [E]nvironmental [P]rotection [O]rder to enjoin any act that may cause grave and irreparable injury to the protected area and to the residents of Las Piñas and Parañaque, and to monitor any such acts once the Project has been commenced.22
x x x [T]he release of the ECC only allows the project to proceed to the next stage of project planning, which is the acquisition of approvals from other government agencies and LGUs. Aside from the acquisition of these approvals, the proponents must also comply with the conditions and undertakings in the ECC and EPRMP. To name a few, these include the implementation of a Coastal Ecosystem Management Plan/Program, Information, Education and Communication Program, Flood Monitoring Plan, and alignment of the Environmental Management Plan with the Manila Bay Coastal Strategy. x x x
x x x
Moreover, the ECC demands compliance with the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, Ecological Solid Waste Management Program Act of 2000, the Philippine Clear Water Act of 2004, and the Philippine Clean Air Act of 1999, among other environmental laws and regulations. Further, the ECC requires proper storm drainage system, concrete culverts, and other t1ood and erosion control [measures], noise and air pollution control measures to prevent environmental degradation.
Without any doubt, the absence of compliance with the above conditions and undertakings, aside from those contained in the EPRMP, prevent the actual implementation of the coastal bay project. Also, the absence of the above plans and programs which are intended to direct the course of the project implementation renders the contention of petitioner as absurd. As a planning tool, the ECC cmmot embody the "specific details" for the implementation of the project, inasmuch as the post-conditions thereto, that will form part of the specific commitments of the proponents, are yet to be formulated by the concerned government agencies and institutions.
x x x
For the critical habitat alone [or the LPPCHEA], the proponents are mandated to coordinate with the Manila Bay Critical Habitat Management Council and the Protected Areas and Wildlife Bureau (PAWB) to tackle impacts of the project on the critical habitat, and implement the recommendations of the said council. Thus, the project implementation cannot proceed without said recommendations.
Parenthetically, the recommendation of both the Manila Bay Critical Habitat Management Council and the PAWB must be implemented before any work or construction activities may be made, especially those affecting the critical habitat. Again, this condition seems to have been ignored by petitioner in claiming that the adoption of the Boulevard 2000 Framework Plan would destroy the ecosystems found in the critical habitat. Considering the ECC-required recommendations from the Manila Bay Critical Habitat Management Council and the PAWB, observance of the Boulevard 2000 Framework Plan cannot be made in its totality without endangering the critical habitat.23 (Emphasis supplied)
78. To recall, the DENR Vulnerability Report, which Petitioner cites in her Petition, states that an estimated 572.76 kilos of garbage are being thrown in the LPPCHEA everyday.
79. The LPPCHEA is expected to deteriorate further if no active intervention is put in place to improve the current situation. As adequately shown by ALLTECH during trial, the mitigation measures adopted by the Project proponents, not to mention the onerous conditions stated in the ECC, ensure that the Project will move towards the direction of environmental protection. Given all these, Petitioner's insistence to leave LPPCHEA as it is and let it further degrade is certainly absurd and irrational.
80. All told, the project masterplan has been formulated to allow the development works to co-exist with the LPPCHEA, with the latter serving as an eco-park/eco-tourism area. A vibrant and well-preserved LPPCHEA is, therefore, integral to the success of the Project.25 (Emphasis supplied)
On the nature of a reclamation project and its effects on the environment |
Verily, the question is not "whether actual environmental damage will occur" anymore, but how much more damage will it cause, for it has consistently been found and proven that reclamation had actually and already caused environmental damage. In fact, it is not only the aforementioned areas that will be exposed to flooding and inundation, but also the very reclaimed lands themselves.
For another, the reclamation projects x x x and the eventual construction of road networks and bridges will more likely than not cause direct negative impacts upon the [LPPCHEA]. x x x
x x x
Hence, even respondents' evidence confirmed the conclusion of the Court of Appeals that "the threat of flooding as a consequence of land reclamation is conceded and thus the causal link between the human activity of reclamation and environmental threat of flooding is established."
Worse, respondents' position rests on the premise that the recommended mitigating measures being in place would purportedly prevent or "would not aggravate" the flooding situations and "even reduce the level of flooding." [Geological expert Kelvin S. Rodolfo], however, remains unconvinced and unimpressed by such measures for being historically ineffective and even aggravating x x x.
x x x
Clearly, respondents' confidence is misplaced. Short of any certainty, the promise of safety is but ideal and theoretical. In effect, respondents, again, have clearly acknowledged, nay, admitted that the proposed reclamation would cause environmental impacts.26 (Emphasis omitted)
The process of reclamation per se does not result to flooding or significant environmental damage contrary to petitioner's baseless conclusions.
Petitioner's assertion that "aggravated flooding as a direct result of a reclamation project is conceded fact, rendering any discussion thereon unnecessary" is literally taken out of context. To be clear, the Court of Appeals' declaration that "the threat of flooding as a consequence of land reclamation is conceded" has been qualified by the conclusion that "the extent and magnitude of this threat have been scientifically determined and quantified and they do not amount at all to any such massive flooding nor to any such destruction of the critical habitat LPPCHEA asserted by the petitioner." x x x
x x x
Indeed, the mere introduction of works upon the environment, by themselves, cannot cause significant threat, damage or destruction thereon. Activities which may affect the environment such as mining, cutting of trees, land development and urban expansion (which may aggravate global warming) are not proscribed provided that scientific studies or environmental assessments have been made to identify the potential risks and measures which may be taken to address the same.
These include reclamation activities which do not necessarily result to massive flooding or significant environmental damage as long as scientific studies have been conducted and the needed measures to address the potential risks are observed during the implementation of the project. The recurring floods in Metro Manila are not caused by reclamation activities; instead, these are caused by the proliferation of garbage, human recklessness and poor engineering, among others.
On the other hand, the vast portions of the Coastal Bay Area, along the stretch of Roxas Boulevard, are reclaimed lands which, by themselves, do not bring about flooding to the nearby areas. Well[-]designed and properly executed reclamation projects will not cause flooding. In fact, these projects can prevent flooding by providing added protection such as sea barriers to mitigate the effects of accelerated rising sea levels caused by global warming.27 (Emphasis and underscoring supplied)
27. Essentially, local revenue multipliers will arise from tourism that would be expected with the improvement of conditions in the LPPCHEA and expansion of residential and commercial establishments after completion. These sprang from the common knowledge that Las [Piñas] City is the fourth most populated but has the fifth lowest income in the National Capital Region. The City should not be restrained from pursuing a legitimate project that aims to spur its socio-economic development.
28. But more importantly, on top of it all, Respondent City of Las [Piñas] will certainly not allow to be the cause of environmental damage and dangerous flooding. In pursuing the project, it has directed the adoption of concrete measures to protect the LPPCHEA and improve Hooding conditions. The City of Las [Piñas] has insisted on thorough research and studies to avoid any tragedy that may befall its environment and citizenry. Given the foregoing, it would be a dangerous precedent to allow the instant Petition supported merely by bare allegation and suspicion. To do so would be the real tragedy in that sense.31 (Emphasis supplied)
Petitioner Villar may have been motivated by good faith x x x. Unfortunately, the ones that she commissioned failed to conduct a thorough, rigorous and objective study on the possible impacts of the proposed reclamation project. The studies made by Tricore and CEC-P were not comprehensive and the methodologies applied were inappropriate. There was also lack of expertise on the part of Tricore and CEC-P in the areas of hydrology and hydraulics, which areas are pertinent in the conduct of their respective studies. Thus, petitioner Villar failed to support her claim by any competent, credible and reliable evidence that the proposed reclamation project will expose her and the Las Piñas and Parañaque residents and their properties to catastrophic environmental damage.
On the other hand, Alltech and the other respondents were able to establish the scientific and expert studies [that] assessed the potential flooding and flushing impact that may arise from the coastal bay project. The expert, objective studies conducted by DCCD, Surbana and DHI, revealed that if all the recommended mitigating measures were to be implemented, the [c]oastal bay project would not aggravate the flooding situation in the river mouths of Parañaque, Las Piñas-Zapote Rivers, and it may even reduce the level of flooding.34 (Emphasis supplied)
Endnotes:
1LNL Archipelago Minerals, Inc. v. Agham Party List, 784 Phil. 456, 470 (2016).
2 Id.
3Abogado v. Department of Environment and Natural Resources, G.R. No. 246209, September 3, 2019, accessed at .
4 752 Phil. 498 (2015).
5 Id. at 542.
6 Id.
7Rollo, pp. 2807-2808.
8 Dissenting Opinion of Justice Leonen, pp. 7-8.
9Rollo, p. 2812.
10 Id. at 90-91.
11 Id. at 91.
12Paje v. Casiño, supra note 4, at 611-612.
13 Id. at 612. Emphasis supplied.
14Rollo, pp. 2809-2810.
15Ponencia, p. 6.
16Rollo, pp. 1270-1271.
17 Id. at 91.
18 Id.
19 Id. at 2814.
20Ponencia, p. 6.
21 Id. at 16.
22 Dissenting Opinion of Justice Leonen, pp. 13-14.
23Rollo, pp. 2819-2821.
24 Id. at 1276.
25 Id. at 1284.
26 Dissenting Opinion of Justice Javier, pp. 5-9.
27Rollo, pp. 2822-2823.
28Osmeña v. Garganera, 828 Phil. 560, 573 (2018).
29 DAO 03-30, Art. 1, Sec. 1; DAO 03-30 Revised Procedural Manual 1.0(1).
30 DAO 03-30, Art. 1, Sec. 1(a); DAO 03-30 Revised Procedural Manual 1.0(1)(a).
31Rollo, pp. 2748-2749.
32See RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, A.M. 09-6-8-SC (2010), Rule 1, Sec. 3 and Rule 7, Sec. 1.
33Abogado v. Department of Environment and Natural Resources, supra note 3.
34Rollo, pp. 48-49.
LAZARO-JAVIER, J.:
I respectfully dissent and vote to partially grant the petition.
Paje v. Casiño1 has held that a petition for the privilege of the writ of kalikasan addresses (i) whether the alleged defects or irregularities in the issuance of an environmental compliance certificate have a causal link or at least a reasonable connection to the actual or threatened grave violation of the constitutional right to a balanced and healthful ecology in terms of the territorial scope of such damage; and (ii) whether actual environmental damage will occur if the project is implemented.
Whether the defects or irregularities in the issuance of an environmental compliance
certificate have a causal link or at least a reasonable connection to
the actual or threatened grave violation of the constitutional right to a balanced and healthful ecology in terms of the territorial scope of
such damage |
- Expansion of existing projects (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion);
- Operating projects without ECCs;
- Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations;
- Existing projects for modification or re-start up; and,
- Single, non-implemented project applying for a major amendment of its ECC.
138. The rationale behind requiring only an EPRMP for projects that have operated initially is to dispense with needless submissions of new studies as there presumably exists a number of useful data about the actual environmental impacts of a project as observed. Of course, there is no need to duplicate the tedious processes of an Environmental Impact Statement when the effects of a project have been recorded upon its implementation and where historical environmental performance and status of the project and its management plan are already known.
139. Given a project that had operated but stopped for a period of more than five (5) years, what is required is an environmental impact report on how well the mitigation and enhancement measures worked, using its environmental management plan ("EMP") as a yardstick. The convenience of preparing an EPRMP leaves the proponent to focus on ways to enact improvements on a project that has been implemented and has operated with plans for modification, expansion or a restart. This shortcut allows the proponent to suggest modifications and changes in the original plan to augment environmental performance without the costly distraction of undertaking a comprehensive environmental impact statement study.2
140. Being a documentation of the actual cumulative environmental impacts and effectiveness of current measure for single projects, basic logic dictates that there has to be a project that had physically come onto fruition and had actually become operational. For, otherwise, there is no source from which a report can be made on such a single project.3
The appropriate EIA document type vis-a-vis a particular project depends on the potential significant environmental impact of the project. At the highest level would be an ECP, such as the subject project. The hierarchy of EIA document type, based on comprehensiveness and detail of the study or report contained therein, insofar as single projects are concerned, is as follows:
1. Environmental Impact Statement (EIS),
2. Initial Environmental Examination (IEE) Report,
3. Initial Environmental Examination (IEE) Checklist Report,
4. Environmental Performance Report and Management Plan (EPRMP), and
5. Project Description 170 (PD) or Project Description Report (PDR).4
Whether actual environmental damage will occur if the project is implemented |
Petitioner Villar also commissioned Tricore Solutions, Inc., an engineering consultant, to evaluate and assess the impact of the proposed reclamation project. Tricore came up with a report entitled "Flood Assessment and Evaluation for Las Piñas City, Parañaque City and Bacoor, Cavite." In order to determine the existing flood extent along the vicinity of Las Piñas City, Parañaque City and Bacoor, Cavite, the following scenarios were considered in the said report: 1) highest rainfall magnitude (as recorded) without reclamation; 2) highest rainfall magnitude (as recorded) with reclamation; 3) maximum rainfall magnitude and maximum high tide with reclamation; 4) highest rainfall magnitude (as recorded) with the highest storm surge, maximum high tide and sea water rise brought about by climate change with reclamation, 5) highest rainfall magnitude, highest storm surge and maximum high tide, sea water rise- again due to climate change with reclamation; and 6) highest rainfall magnitude, highest storm surge and maximum high tide, sea water rise- again due to climate change with reclamation and another reclamation in Bacoor, Cavite. According to Engineer Carvajal, who is the President, head hydrologist, sanitary, geotechnical, structural and coastal engineer of Tricore, based on their hydrologic and hydraulic calculations, in a worst case scenario, taking into account Alltech's reclamation project and recorded maximum rainfall brought about by Typhoon Ondoy and strong winds experienced during Typhoon Pedring and other factors such as a maximum high tide of 1.44 meters and a one-meter rise above Mean Sea Level as may be occasioned by climate change, no less than 37 barangays in the Municipality of Bacoor, 17 barangays in Las Piñas City and 11 barangays in Parañaque City, will be totally submerged under 0.15 meters to 5.12 meters of floodwater. In other words, almost two-thirds of the entire areas of the cities of Las Piñas, Parañaque and Bacoor will be practically submerged or inundated when reclamation takes place.5
1. Rapid subsidence of coastal lands is enhancing the risk of flooding and high tides. 2. Among the reasons for this rapid subsidence, says Rodolfo, is rapid loss of groundwater due to decades of uncontrolled pumping. Loss of groundwater has also caused the ground level to fall, leaving these areas vulnerable to flooding.8 3. Storm surges are an ever-worsening threat, due in part to subsidence, but also because climate change is increasing the frequency of the strongest typhoons. 4. Reclaimed coastal areas are very susceptible to liquefaction and enhanced ground-shaking during earthquakes. 5. These risks are enhanced by DPWH's and JICA's ignoring or minimizing the phenomena in their projects.
Manila Bay was once a productive fishing area; destructive fishing practices, massive pollution, and unabated land conversion of wetlands and coastal areas have contributed to the marine ecosystem's deterioration. The destruction of Manila Bay's marine ecosystem threatens the food supply stability of surrounding communities.
Coastal communities around Manila Bay are already exposed to numerous natural hazards, particularly those related to earthquakes (e.g. liquefaction, tsunamis) and hydro-meteorological events (e.g., floods, storm surges). The effects of these hazards are exacerbated by accelerated land subsidence due to over-extraction of groundwater.
x x x
The Philippine government has a clear directive to rehabilitate and preserve Manila Bay through the writ of continuing mandamus issued by the Philippine Supreme Court. Land reclamation directly contradicts that mandate. Furthermore, scientific evidence clearly shows the negative socio-economic effects of reclamation in Manila Bay. More reclamation project proposals continue to be entertained, nonetheless.9
The Center for Environmental Concerns-Philippines (CECP) was also engaged by petitioner Villar to conduct a technical assessment of the Las Piñas-Parañaque Coastal Bay Project. The study made by CEC-P involved the identification of plausible impacts of the Las Piñas-Parañaque Coastal Bay Project on biodiversity and the critical habitat, on flooding and on the socioeconomic situation of the residents in the cities of Las Piñas and Parañaque. It did not assess the whole development plan as described in the proponent's EPRMP. The main document scrutinized by CEC-P in the study was the EPRMP submitted by Alltech to the DENR in August 2010 because it considered the same to be the final report on the proponent's proposed management of the environmental impacts before the issuance of the March 2011 ECC. The said EPRMP was the source document of CEC-P on how the proponent expects its project to affect the landscape and ecology of the project site, and what measures it has taken or will take to minimize the adverse effects that may be brought by this change. The CEC-P concluded that as a large scale project that will change the landscape of the area, the reclamation can be considered a looming danger to the habitat. The CEC-P findings are as follows: 1) As to the biophysical resources, the large-scale project will change the landscape of the area; development activities that will be undertaken in Manila Bay would likely impact the natural ecosystems and its ecological functions and services; 2) The expansion of the reclamation area will deposit and spread additional sediments to the Las Piñas-Parañaque Critical Habitat Environment Area (LPPCHEA) which will further destroy habitats of existing biodiversity; 3) With respect to the mangrove ecosystem situated in relation to the Coastal Bay Project, the coastal construction for the reclamation project will change the shoreline by altering the hydrodynamic characteristics of the Bay that include current, wave actions, tidal fluctuations and transport of sediments along the coasts, which would restrict circulation of coastal water bodies resulting to degradation of its water quality and environmental ecosystems; the mangrove ecosystem is also poised to undergo fundamental alterations and changes since the planned reclamation, which will begin from the coasts of the LPPCHEA facing the south China Sea, is likely to threaten and impede the continuous flow of seawater into the lagoon; 4) With regard to the biodiversity, the EPRMP, provides little or no information on the ecological functions of the mangroves, birds, and other living things which may be found in the reclamation area which suggests a haphazard study of the natural resources and the particular ecosystem that will be subject to the reclamation activity; 5) As to the marine life in the areas, construction activities such as dredging and filling would cause water turbidity and sedimentation that would result to decline in water quality, loss of species and toxic contamination of ecosystems; and 6) As to the socio-economic and cultural effects of the proposed Coastal Bay Project, one of the foreseen effects on the people would be diminished aquaculture production as the habitat and breeding ground of marine life will be destroyed.
According to Frances Quimpo, the Executive Director of the CEC-P, the study made by CEC-P had established firm bases to conclude that the LP-P Coastal bay project has not truly addressed the identified threats of flooding to surrounding areas, threats on biodiversity loss, as well as the threat of displacement of local livelihood; and that it lacks a clear scientific study on the flooding hazards of the reclamation, appropriate mitigation measures to counter the dangers of reclamation to the LPPCHEA, as well as the potential economic displacement of the fisher-folks in the area with the destruction of the bottom organisms that replenish marine life. She further asserted that the absence of an Environmental Impact Statement (EIS) was but redundant evidence that the Coastal Bay Project has not undertaken the de rigueur of a full-fledged environmental study in order to impart scientific confidence that the proposed reclamation project will not devastate the surrounding environment, whether human or wildlife, to within a manageable and acceptable margin. She finally recommended that the reclamation project be halted until competent, comprehensive, deeper research and study are conducted to ensure that lives, human or otherwise, are not unduly and unnecessarily put at the risk of irreparable harm and damage.
Another member of CEC-P, Giovanni A. Tapang, who is an Associate Professor in Physics in the National Institute of Physics, also noted that the coastal bay project lacks complete, multi-faceted blueprint for addressing the problem of flow of seawater; that Alltech's EPRMP did not specify measures for the maintenance of the brackish waters, and engineering interventions that would utilize the access road from Roxas Boulevard to facilitate sea water flow to the lagoon; and that the bold claim by Alltech that if the mitigation measures are implemented, the reclamation might even improve the flooding situation in the two cities, was not supported by data presented in Alltech's EPRMP.10
History of ignoring science while building projects that fail
1980s: Flimsy lahar dikes built at Mayan Volcano despite my scientific objections. Dike building continued until Super Typhoon Reming breached them all in 2006, killing 1,266 people who had sought safety by living behind them (Paguican et al. 2009).
1990s: Same lahar-dike builders' mistakes on a much larger scale at Pinatubo despite scientists' objections. October 1995: Tropical Storm Mameng lahars breached Gugu dike, totally destroyed Bgy Cabalantian in Bacolor, Pampanga. Hundreds of people killed.
2000s-present: DPWH builds numerous costly, ineffective floodcontrol structures in Central Luzon and KAMANAVA. Academician Siringan's and my objections made no difference. Year after year, they fail, and more money is spent on cosmetic repairs.x x x x KAMANAVA Flood Control Project
2003: P3-billion contract to Nishimatsu to be completed in June 2007.x x x x
2008: Nishimatsu contract expired. Only 88% completed.
February 2009: DPWH awards local contractor BMWAD Joint Ventures P996 million to complete the remaining works.
October 2009: 94% of the project completed.
July 2010: DPWH: "resumes full blast operations, project will be completed by mid-September." P5.18 billion already spent.
2011: project director Macaria Bartolo says project 99.5% complete.
August 2012: Polder dike overtopped by habagat floods, has to be raised another meter.
August 19, 2013: Malabon residents evacuated as floods rise.
July 16, 2014: Typhoon 'Glenda' floods force 1.000+ Malabon evacuation.
September 23, 2014: Tropical storm "Mario", southwest monsoon and high tide force Malabon evacuations.
July 6, 2015: CAMANAVA flooded.
July 29, 2015: MMDA lists 12 most flooded areas in Malabon City.
October 11, 2015: DPWH-NCR office gives additional 931 million to Camanava from the P351-billion Flood Management Master Plan for Metro Manila and Surrounding Areas.
December 15, 2015: Typhoon Nona floods Malabon. ...
And so it goes...
RULE 20
PRECAUTIONARY PRINCIPLE
Section 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.
Section 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.
Whether the actual environmental damage that has been assessed is fatally speculative |
Whether an environmentally critical project should be allowed to proceed only in the clearest of cases |
Not during my time. I will only allow maybe plans of whatever reclamation if it is in connection with a government project. I will not allow massive reclamation for the private sector. Not now. Because if I - if you approve one, you approve all. Ganun 'yan eh.
x x x
The entire Manila City would be environmentally at peril. So pag-aralan ninyong mabuti 'yan. For the next administration, whoever gets to be the president of this country, study it very carefully. Because that Manila there, that old City is an old city and it will decay if you add so many things in front of Manila Bay.
x x x
No - no reclamation. You wait until the next president who would be - they would look - they might look at it kindly at a different lens.13
Reclaimed lands are also to blame for the rise of the water level on the bay which causes massive flooding and storm surges. They badly affect not just the lives of the residents but also may shut down local economic activities particularly those in low-lying cities. These disasters actually intensify the vulnerability of our cities.14
Reclamation activities changed the environment such as coastal morphology, hydro-oceanography, mangrove and coral reefs deterioration. Other effects are the hill-cutting and tree-cutting of the surrounding area to get filling materials for the reclamation project. Among the consequences observed and recorded were flooding, erosions, sedimentations, and adverse influences on the seawater quality, sea biota, local depletion of several kinds of fishes such as snappers, groupers, and shrimps. These have reduced the income of the fishermen, forcing them to switch to other professions such as becoming tradesmen, laborers, and farmers.15
BIOLOGICAL IMPACTS
The process of coastal land reclamation starts off with sand mining and dredging operation carried out offshore, followed by backfilling. The activities carried out during reclamation have direct impacts towards the coastal ecosystem. The impacts include:
Loss of marine benthic ecosystem
Reclamation activities affect the composition of biodiversity through the destruction of ecosystems such as coral reefs, sea grass meadows and mudflats. This will lead to a net decline in faunal biomass and abundance or a shift in species composition. Once the ecosystem is disturbed, it will take some time for it to recover to its original state, depending on the ecosystem's resilience.
x x x x Modification of the ocean floor by reclamation works causes destruction to habitat of the benthic organisms. The disturbance to bottom sediment from dredging works and placement of fill materials will bury and smother bottom dwellers and cause permanent loss of habitat of benthos. Marine sediment extraction causes disturbance and removal of benthic in fauna and epifauna (Yasser, 2011).
Alteration of sediment composition caused by dredging and backfilling is another contributing factor to loss of marine benthic ecosystem. Sediment composition is a key factor in determining benthos distribution. Long-term recovery of benthic ecosystem can occur only where original sediment composition is being restored.
Destruction of buffer zone
Coastal reclamation is often associated with the loss of coastal ecosystems such as mangroves, seagrasses and mudflats. These ecosystem acts as natural buffers against wave energy and minimising the impacts of wave on coastal areas, thus protecting the coastal area from being flooded and eroded due to wave action.
Removal of the ecosystems will leave the coastal communities vulnerable to flooding and natural disaster such as tsunami. As widely reported since 2004 when the worst tsunami in record hit South East Asia, extensive areas of mangroves can reduce the loss of life and damage caused by tsunamis by taking the first brunt of the impact and by dissipating the energy of the wave as it passes through the mangrove area.
The survival of the fisherfolks at Pulau Betong, south-west of Penang Island, was attributed to the mangroves growing there. The mangrove forests had helped to buffer the impact of the tsunami heading inland as compared to other places that received a direct hit (Penang Economic Report, Jan. 2005, Vol. 7, Issue 1).
Disruption of food chain
Coastal developments directly disturb the substrates and microenvironments that benthic macro invertebrates depend on to survive. x x x x
Mangroves also serve to reduce coastal erosion and is a habitat for many species of marine life. They serve as a transit place for more than 30 species of migratory birds, and house mudskippers, fish, crustaceans, and a whole ecosystem of its own. They are a home to all kinds of fish, snails, cockles, shrimps and crabs, reptiles like snakes and monitor lizards, migratory and local birds, insects and mammals such as monkeys, wild boars and otters. Birds seek these places as their sanctuary and feeding place during their migratory season from October to March.
It is proven that land reclamation does cause disjunctions in the consistency of suitable habitats for these organisms which we predict will affect organisms higher in the food chain (Chee & Sim, 2016; Chee et al., 2017). The stress tolerant species will become dominant and replace other species as they are able to stand the changes.
Collapsed ecosystems cannot sustain marine organisms that are dependent on it for survival. Shoreline modification and reclamation works will affect the existing biotic and abiotic factors that are linked in food chains. Any changes or disruption to the close relations between certain species will affect the ecosystem's balance. Removal of primary producers such as mangrove and seagrasses will affect the rest of the food chain as they serve as a base where every other organism depends on directly or indirectly for survival.
Coastal water pollution
Pollution can be controlled to some extent, but ecological and environmental impacts of reclamation cannot be restored. Suspension of organics, heavy metals and other pollutants into sea through dredging activities will cause disturbance to bottom sediments. Land filling with dredged materials may release contaminants which will have impacts on marine life. Eventually, low water quality will affect the sea biotas around the area, and negatively affect the lives of the fishes and coral reef (Priyandes & Majid, 2009).
Corals that are stressed by siltation, mechanical damage, or pollution have a greater likelihood of being subjected to diseases (Clark 1996). As coral reefs are well known as spawning ground, feeding ground, and nursery ground for enormous number of marine life, its destruction will cause breakdown in the ecosystem.
Other than that, sea grass leaves improve[d] water quality by absorbing nutrients in runoff from the land and slowing the velocity of water, capturing sand, dirt and silt particles. When the bottom sediments are disturbed during reclamation projects, it causes the release of toxic chemicals including heavy metals and polychlorinated biphenyls (PCB) into water column which was trapped by sea grass earlier. The release of toxic compounds will degrade the water quality and affect the aquatic life.
Increase in siltation and turbidity
Dredging and extraction of aggregates from the benthic zone or the seabed is a form of disturbance that leads to increase of suspended particles in the water column. Dredged material may cause suspended solids during dredging as a result of substratum disturbance and during transport to the surface, overflow from barges or leakage from pipelines during transport between dredged and disposal sites (Yasser, 2011).
Aggregate particles that are too fine to be used are rejected by dredging boats, releasing vast dust plumes and change the water turbidity, resulting in major changes to aquatic habitats over a large area. The ecosystems that will be greatly affected by siltation are the coral reefs and sea grasses. Siltation kills corals by shading and smothering them and reduces recruitment of juvenile corals (DENR 2001).
Smothered sea grasses will not be able to take up the sunlight efficiently to carry out photosynthesis. In addition, increased turbidity will increase the scattering of light penetrating the water, causing difficulties to photosynthetic benthic organism to absorb the sunlight. x x x x
SOCIO-ECONOMIC IMPACTS
Livelihood and fisheries
Coastline changes in the coastal areas due to reclamation will impact the local community in that area. Local fishers whose livelihood and source of income depended on the fishing industry are adversely impacted due to land reclamation. x x x x
Other adverse impact includes the reduction of daily fish catch by the fishermen, forcing them to either double their efforts in catching fish or totally abandon their age-old profession to try other jobs (Priyandes & Majid, 2009). However, without experience and knowledge, it will be difficult for them to adjust to their new way of life. x x x x
PHYSICAL IMPACTS
(A) Saltwater intrusion and alteration of groundwater system
Land reclamation activities in coastal areas causes changes on local groundwater systems (Guo & Jiao, 2007). This is because the removal of crucial ecosystems such as mangrove and mudflats maximises the impacts of wave on coastal areas, causing seawater intrusion into groundwater. This will affect nearby agriculture land as the pH of the soil is altered thus making it unsuitable for plant growth, especially species that are sensitive to salinity changes. x x x x
OTHER IMPACTS
Temporary increase in noise pollution and air quality is likely to occur at the site, caused by construction and reclamation processes. Dust and particulate generation due to movement into and off the site like scrappers, bulldozers, and loaders and due to excavated soil is the negative impact of temporary workforce (Yasser, 2011). This gives a negative psychological and physical impact to the people around the area. x x x x
The stress level of the residents might increase due to traffic congestion as many routes will be inaccessible for reclamation development Therefore, the residents were left with no choice but to take alternative routes, causing inconveniences due to the restrictive access.16
Endnotes:
1 732 Phil. 498 (2015).
2Reflections of J. Marvic M.V.F. Leonen dated April 26, 2021, pp. 5-6.
3Rollo, p. 106.
4 Supra note 1 at 599-600.
5Id. at 19-19A.
6 PhD in Geological Sciences, University of Southern California, 1967 MS in Geological Sciences, University of Southern California, 1964 BS in Geology, University of the Philippines, 1958; Fellow, American Association for the Advancement of Science; Fellow, Geological Society of America; American Geophysical Union; Geological Society of the Philippines; Society of Sedimentary Geologists (SEPM).
7 Dangerous Aspects of Reclamation Along Manila Bay and Laguna de Bay: NAST Policy Discussion on the Hazards, Risks and Profits of Reclamation, February 15, 2016, Kelvin S. Rodolfo.
8 Rina Jimenez-David, https://opinion.inquirer.net/93493/why-reclamation-is-a-very-bad-idea, posted 12:20 AM March 06, 2016; Last Accessed March 9, 2021 14:43.
9 Eco, R.C., Manila Bay reclamation and its impacts on the people and environment, https://ui.adsabs.harvard.edu/abs/2018AGUFMPA43E138x_5E/abstract, last accessed March 9, 2021, 15:08.
10Rollo, (Vol. 1), pp. 19-A-22.
11Id. at 49.
12 Dangerous Aspects of Reclamation Along Manila Bay and Laguna de Bay: NAST Policy Discussion on the Hazards, Risks and Profits of Reclamation, February 15, 2016, Kelvin S. Rodolfo.
13 SPEECH OF PRESIDENT RODRIGO ROA DUTERTE DURING THE INAUGURATION OF THE SANGLEY AIRPORT DEVELOPMENT PROJECT AND PRESENTATION OF THE SANGLEY POINT INTERNATIONAL AIRPORT PROJECT (https://pcoo.gov.ph/wpcontent/uploads/2020/02/20200215-Speech-of-President-Rodrigo-Roa-Duterte-during-theInauguration-of-the-Sangley-Airport-Development-Project-and-Presentation-of-the-Sangley-PointInternational-Airport-Project-converted.pdf).
14 https://www.smartcitiesdive.com/ex/sustainablecitiescollective/unsustainable-truth-about-landreclamation-worsening-impacts-manila-bay-r/1271899/
15 http://eprints.utm.my/id/eprint/2066/1/MRafeeMajid2009_ImpactReclamationActivities.pdf
16 Impacts of Coastal Reclamation in Malaysia, published by Sahabat Alam Malaysia (Friends of the Earth Malaysia), accessed at https://foe-malaysia.org/wpcontent/uploads/2020/12/190226_Impacts_of_Coastal_Reclamation_in_Malaysia-compressed.pdf
17 595 Phil. 305, 320 (2008).
18Id. at 320.
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