Braga v. Abaya
Braga v. Abaya, G.R. No. 223076, September 13, 2016
- Procedural (Remedial Law)
- Political Law
- writ of continuing mandamus
- writ of kalikasan
- environmental compliance certificate
- environmental impact statement
- Davao Sasa Wharf
- public-private partnership
- Local Government Code
- prior consultation
- prematurity
- Resolution No. 118
I. Facts of the Case
Petitioners, stakeholders from Davao City and Samal, filed an urgent petition for a writ of continuing mandamus and/or writ of kalikasan against the DOTC, its PBAC and the PPA over the Davao Sasa Wharf modernization project under the PPP scheme. They claimed the project was being bidded out without an ECC or EIS, without local consultation and sanggunian approval under the Local Government Code, and in noncompliance with the conditions of Resolution No. 118 of the Regional Development Council. Respondents countered that the petition was premature because the project was still at the bidding stage and had no proponent yet.
2011
The Sasa Wharf in Barangay Sasa, Davao City, the base port of the Port of Davao, was pegged for privatization under the Public-Private Partnership (PPP) scheme.
2012
The PPA commissioned Science & Vision for Technology, Inc. to conduct a feasibility study (PPA study). It estimated a modernization cost of 3.5 billion pesos for new equipment and facilities.
2013
The DOTC commissioned Hamburg Port Consultants to conduct a second feasibility study (DOTC study). It projected a cost of 18 billion pesos and required a 27.9-hectare expansion of Sasa Wharf, and it served as a primary consideration for the expansion project.
December 21, 2014
The Regional Development Council for Region XI endorsed the project through Resolution No. 118, subject to conditions to be met before implementation: acquisition of 6.4 hectares of right of way, payment of compensation, relocation of informal settlers, and benefits to port users and the people of Davao.
April 10, 2015
The DOTC published an invitation to pre-qualify and bid for the Project.
March 15, 2016
Petitioners filed directly with the Supreme Court an Urgent Petition for a Writ of Continuing Mandamus and/or Writ of Kalikasan with a prayer for a TEPO. They alleged noncompliance with Resolution No. 118, no prior consultation or sanggunian approval under Sections 26 and 27 of the LGC, an objecting resolution from the Davao City sanggunian, and no ECC under P.D. 1586. They sought to restrain the bidding and award until compliance.
Respondents, through the OSG, argued that the petition was premature because the project was still in bidding with no proponent yet. They said the proponent has the duty to undertake the EIA and secure the ECC, that consultation was premature, and that petitioners failed to prove environmental damage affecting two or more cities or provinces.
September 13, 2016
The Supreme Court En Banc, through Justice Brion, denied the petition for prematurity and lack of merit.
II. Issues
Whether or not the petition for a writ of continuing mandamus to compel respondents to submit an Environmental Impact Statement and secure an Environmental Compliance Certificate is premature and proper against the public respondents.
Whether or not the petition is premature for purposes of compelling compliance with the local consultation and sanggunian approval requirements under Sections 26 and 27 of the Local Government Code.
Whether or not a writ of kalikasan may be issued on the basis of the petition.
Whether or not respondents violated the conditions of Resolution No. 118 of the Regional Development Council of Region XI.
III. Ruling
Whether or not the petition for a writ of continuing mandamus to compel respondents to submit an Environmental Impact Statement and secure an Environmental Compliance Certificate is premature and proper against the public respondents.
The petition for continuing mandamus on the EIS and ECC is premature and cannot prosper against the public respondents. There is as yet no project proponent, and the duty to submit the EIS and secure the ECC belongs to the proponent, not to the DOTC or PPA.
How the Court reasoned
- P.D. 1586 and P.D. 1151 require an EIS and an ECC for projects that may significantly affect the environment. Under the implementing rules, the duty to prepare the EIS and secure the ECC rests on the project proponent.
- Under the BOT Law (R.A. 6957, as amended), the project proponent is the private entity chosen through public bidding. Until the bidding concludes and the contract is awarded, no one holds that role.
- The project was still at the bidding stage, so there was no proponent responsible for the EIS and ECC.
- The public respondents therefore had no present duty to submit an EIS or obtain an ECC.
- Continuing mandamus lies only to compel a person who is legally obliged to perform a duty that is due. It cannot issue against a respondent who is not the obligated person, or when the time to perform has not yet arrived.
- Petitioners' action was filed too early, and the Court could not issue the writ.
“Accordingly, there is yet no project proponent responsible for the EIS and the ECC until the bidding process has concluded and the contract has been awarded.”
Rule applied
P.D. No. 1586 (Environmental Impact Statement System), Section 2; P.D. No. 1151, Section 4; Rule on continuing mandamus (Rules of Procedure for Environmental Cases); DENR Administrative Order No. 2003-30
Whether or not the petition is premature for purposes of compelling compliance with the local consultation and sanggunian approval requirements under Sections 26 and 27 of the Local Government Code.
The petition on the local consultation and sanggunian approval requirements is premature. The DOTC must comply with them, but only before implementation, which has not yet begun.
How the Court reasoned
- Sections 26 and 27 of the LGC require national agencies to consult local government units and stakeholders and to obtain prior sanggunian approval for projects that may cause pollution or affect the environment and the people.
- The Court held that this duty belongs to the national agency (the DOTC), not to the private proponent.
- The duty must be performed before implementation of the project, not before the bidding.
- Implementation begins only upon signing of the finalized contract incorporating the detailed engineering design (the Construction Stage).
- Because that stage had not been reached, the period to perform the duty had not yet expired, so there was nothing yet to compel.
- Consultation now would also be premature because the details of the project's design and impact are not yet fixed.
“The signing of the finalized contract incorporating the detailed engineering design is the reckoning point when implementation can begin.”
Rule applied
Local Government Code, Sections 2(c), 26 and 27
Whether or not a writ of kalikasan may be issued on the basis of the petition.
A writ of kalikasan cannot issue on this petition. The allegations of environmental damage are speculative, and nothing shows a threat affecting two or more cities or provinces.
How the Court reasoned
- A writ of kalikasan requires an actual or threatened violation of the right to a balanced and healthful ecology, caused by an unlawful act or omission, and of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
- Petitioners' allegations of environmental harm were hazy and speculative, and relied on general materials about port-cities and coastal development.
- The Court lacks the technical competence to assess such environmental claims on bare allegations.
- The bidding process itself poses no environmental threat to two or more cities or provinces.
- Petitioners did not show an unlawful act or omission by respondents, since the ECC and EIS duties had not yet arisen.
- The petition therefore fails the requirements for the writ.
Rule applied
Rule 7, Rules of Procedure for Environmental Cases (writ of kalikasan); 1987 Constitution, Art. II, Sec. 16 (right to a balanced and healthful ecology)
Whether or not respondents violated the conditions of Resolution No. 118 of the Regional Development Council of Region XI.
Respondents did not violate Resolution No. 118. Its conditions need to be met only before implementation of the project, and the project is still at the bidding stage.
How the Court reasoned
- Resolution No. 118 endorsed the project subject to four conditions that must be met before its implementation.
- The Court read the resolution's language as setting compliance at the pre-implementation stage, not at the bidding stage.
- Implementation begins only after the finalized contract is signed, so the conditions are not yet due.
- The issuance of the invitation to pre-qualify and bid was therefore not a violation of the resolution.
- The claim of noncompliance is thus also premature.
“WHEREFORE, we DENY the petition for its prematurity and lack of merit.”
Rule applied
Regional Development Council for Region XI Resolution No. 118
Doctrines
The duty to prepare the Environmental Impact Statement and secure the Environmental Compliance Certificate belongs to the project proponent. In a PPP/BOT project there is no proponent until the bidding is concluded and the contract awarded, so the public bidding agencies have no duty to submit an EIS or ECC before then.
The duty under Sections 26 and 27 of the Local Government Code to consult local government units and stakeholders and obtain sanggunian approval belongs to the national agency, and it must be complied with before implementation, which begins only upon signing of the finalized contract incorporating the detailed engineering design.
A writ of continuing mandamus cannot issue against a respondent who is not the person obliged to perform the duty, or when the period to perform the duty has not yet expired.
A writ of kalikasan requires more than hazy and speculative allegations. The petitioner must show an unlawful act or omission threatening environmental damage of such magnitude as to prejudice the inhabitants of two or more cities or provinces.
Final Disposition
WHEREFORE, we DENY the petition for its prematurity and lack of merit.
Notes
Decision penned by Justice Brion, En Banc. The Court's ruling does not foreclose later action once the project reaches implementation without the required ECC, consultation and sanggunian approval, or without compliance with the conditions of Resolution No. 118.