Granting of an Application for ECC is a discretionary function and not

ministerial. Hence, it is not mandamusable.

G.R. No. 160932 January 14, 2013

SPECIAL PEOPLE, INC. FOUNDATION, REPRESENTED BY ITS

CHAIRMAN, ROBERTO P. CERICOS, Petitioner,
vs.
NESTOR M. CANDA, BIENVENIDO LIPA YON, JULIAN D. AMADOR,
BOHOL PROVINCIAL CHIEF, REGIONAL DIRECTOR, AND NATIONAL
DIRECTOR, RESPECTIVELY, ENVIRONMENTAL MANAGEMENT
BUREAU, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, AND THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES, ALL SUED IN BOTH
THEIR OFFICIAL AND PRIVATE CAPACITIES, Respondents.

DECISION

BERSAMIN, J.:

The peremptory writ of mandamus is an extraordinary remedy that is issued

only in extreme necessity, and the ordinary course of procedure is powerless
to afford an adequate and speedy relief to one who has a clear legal right to
the performance of the act to be compelled.
Antecedents
The petitioner was a proponent of a water-resource development and
utilization project in Barangay Jimilia-an in the Municipality of Loboc, Bohol
that would involve the tapping and purifying of water from the Loboc River,
and the distribution of the purified water to the residents of Loboc and six
other municipalities. The petitioner applied for a Certificate of Non-Coverage
(CNC) with the Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources (DENR), Region 7,
seeking to be exempt from the requirement of the Environmental Compliance
Certificate (ECC) under Section 4 of Presidential Decree No. 1586 on the
following justifications, to wit:
1) The whole project simply involves tapping of water from the Loboc River,
filtering and purifying it, and distributing the same to the consumers in the
covered towns;
2) From the source to the filtration plant, then to the purifier stations, then
finally to the consumers’ households, water flows through steel pipes;
3) The filtration and purifying process employs the latest technology—
"electrocatalytic"—internationally accepted for safety and environment
friendliness;
4) No waste is generated, as the electrocatalytic process dissolves all
impurities in the water;
5) The project involves no destruction [n]or harm to the environment. On the
other hand, it is environment friendly.1
Upon evaluating the nature and magnitude of the environmental impact of
the project, respondent Nestor M. Canda, then Chief of EMB in Bohol,
rendered his findings in a letter dated December 4, 2001, as follows:
1) The project is located within a critical area; hence, Initial Environmental
Examination is required.
2) The project is socially and politically sensitive therefore proof of social
acceptability should be established. Proper indorsement from the Protected
Area Management Bureau or PAMB should be secured.2 (Emphasis
supplied)
On January 11, 2002, the petitioner appealed Canda’s findings to
respondent EMB Region 7 Director Bienvenido L. Lipayon (RD Lipayon),
claiming that it should also be issued a CNC because the project was no
different from the Loboc-Loay waterworks project of the Department of Public
Works and Highways (DPWH) that had recently been issued a CNC.3
On April 3, 2002, RD Lipayon notified the petitioner that its documents
substantially complied with the procedural aspects of the EMB’s review, and
that the application was assigned EMB-DENR-7 Control No. CNC-02-080 for
easy reference in case of follow-up and submission of additional
requirements.4
Later on, RD Lipayon informed the petitioner that an Initial Environmental
Examination document was required for the project due to its significant
impact in the area.5

On August 26, 2002, RD Lipayon required the petitioner to submit the

following documents to enable the EMB to determine whether the project
was within an environmentally critical area or not, to wit:
1. Certification from DENR, Provincial Environment and Natural Resources
Office (PENRO) that it is not within areas declared by law as national parks,
watershed reserves, wildlife preservation area, sanctuaries and not within
the purview of Republic Act No. 7586 or the National Integrated Protected
Areas System (NIPAS) Act, and other issuances including international
commitments and declarations;
2. Certification from the DENR Regional Office/ PENRO [that] the areas
within the project do not constitute the habitat for any endangered or
threatened species or indigenous wildlife (Flora and Fauna).
3. Certification from the following:
3.1. Philippine Atmospheric Geophysical and Astronomical Services
Administration (PAGASA) that the area is not frequently visited or hard-hit
by typhoons. This shall refer to all areas where typhoon signal no. 3 not
hoisted for at least twice a year during the last five (5) years prior to the year
of reckoning. Years to be considered shall be from January 1995 to
December 2001.
3.2. Philippine Institute of Volcanology and Seismology (PHIVOLCS) that the
area was not subjected to an earthquake of at least intensity VII in the Rossi-
Forel scale or its equivalent and hit by tsunamis during the period of 1638
until the year 2001.
3.3. PHIVOLCS that the area was not subjected to earthquakes of at least
intensity VII in the Rossi-Forel scale or its equivalent during the period of
1949 until the year 2001.
3.4. PAGASA that the area is not storm surge-prone.
3.5. Mines and Geosciences Bureau Region 7 (MGB 7) that the area is not
located along fault lines or within fault zones and not located in critical slope.
3.6. City Mayor and/or City Engineers Office that the area is not flood prone.
3.7. Network of Protected Areas for Agriculture (NPAA) of the Bureau of Soils
and Water Management (BSWM) that the area is not classified as Prime
Agricultural Land.
4. Certification from the Provincial Tourism Office or its equivalent office that
areas in your project are not set-aside as aesthetic potential tourist spot.
5. Certification from the National Water Resources Board (NWRB) that areas
within your project are not recharged areas of aquifer.
6. Certification from DENR regional Office and/or Environmental
Management Bureau 7 (EMB 7) that Loboc River is not characterized by one
or any combination of the following conditions:
a. Tapped for domestic purposes;
b. With controlled and/or protected areas declared by appropriate authorities;
and
c. Which support wildlife and fishery activities.
A Certificate of Non-Coverage will duly be issued to your foundation once all
the above mentioned required certifications are complied with.
Projects that are covered by P.D. 1586 or the Environmental Impact System
(EIS) Law should not start unless the Project Proponent should secure an
Environmental Compliance Certificate (ECC), otherwise penalties shall be
imposed.6 (Emphases supplied)
On January 28, 2003, the petitioner submitted eight certifications,7 including
the certification issued by the Philippine Institute of Volcanology and
Seismology (PHIVOLCS), as follows:
That the project area, Loboc, Bohol was subjected to an earthquake of
Intensity VII in the adapted Rossi-Forel scale of I-IX last February 8, 1990.
The magnitude of the earthquake is 6.8 and the highest intensity reported
was VIII, based on the Rossi-Forel Intensity Scale. During the said
earthquake, the PMI Academy Building collapsed while minor cracks were
sustained by the municipal hall, public school, town church and some other
houses in the town. There were reports that immediately after the
earthquake, the force of the incoming waves from the sea caused Alijuan
River in the town of Duero to flow inland. The report also states that the
waves affected 10-50 meters of the coastal beach of the towns of Jagna,
Duero, Guindulman, Garcia Hernandez and Valencia.8 (Emphases supplied)
The petitioner failed to secure a certification from the Regional Office of the
Mines and Geosciences Bureau (RO-MGB) to the effect that the project area
was not located along a fault line/fault zone or a critical slope because RO-
MGB did not have the data and expertise to render such finding, and thus
had to forward the petitioner’s request to the MGB Central Office.9
Upon the MGB’s advice, the petitioner sought and obtained the required
certification from PHIVOLCS, but the certification did not state whether the
project area was within a critical slope. Instead, the certification stated that
the project site was approximately 18 kilometers west of the East Bohol
Fault.10
Given the tenor of the certification from PHIVOLCS, RD Lipayon’s letter
dated February 4, 2003 declared that the project was within an
environmentally critical area, and that the petitioner was not entitled to the
CNC, viz:
After thorough review of your submitted certifications, it was found out that
the area was subjected to an earthquake of Intensity VII in the adapted
Rossi-Forel scale wherein the magnitude of the earthquake is 6.8 with the
highest intensity reported of VIII and you fail to support certification that the
project area is not within critical slope. And based on the Water Usage and
Classification per Department Order (DAO) 34 Series of 1990, subject river
system was officially classified as Class B intended for swimming and
bathing purposes. Moreover, one component of your project involves
opening of roadway connected to the barangay road.
Therefore, we reiterate our previous stand that your project is covered by the
EIS System pursuant to P.D. 1586, the Environmental Impact Statement
Law.11
On March 27, 2003, the petitioner filed a petition for mandamus and
damages in the Regional Trial Court (RTC) in Loay, Bohol,12 alleging that it
was now entitled to a CNC as a matter of right after having complied with the
certification requirements; and that the EMB had earlier issued a CNC to the
DPWH for a similar waterworks project in the same area.
In the decision dated November 18, 2003,13 the RTC dismissed the petition
for mandamus upon the following considerations, namely: (1) PHIVOLCS
certified that the project site had been subjected to an Intensity VII
earthquake in 1990; (2) the CNC issued by the EMB to a similar waterworks
project of the DPWH in the same area was only for the construction of a unit
spring box intake and pump house, and the DENR issued a cease and desist
order relative to the DPWH’s additional project to put up a water filtration
plant therein; (3) the determination of whether an area was environmentally
critical was a task that pertained to the EMB; (4) the assignment of a control
number by the EMB to the petitioner’s application did not mean that the
application was as good as approved; (5) the RTC would not interfere with
the primary prerogative of the EMB to review the merits of the petitioner’s
application for the CNC; and (6) there was already a pending appeal lodged
with the DENR Secretary.
Hence, this appeal brought directly to the Court via petition for review on
certiorari.
Issues
The petitioner submits the following issues:
A. WHETHER OR NOT, AFTER PETITIONER’S DUE COMPLIANCE WITH
THE REQUIREMENTS MANDATED BY RESPONDENTS FOR THE
ISSUANCE OF THE CERTIFICATE OF NON-COVERAGE (CNC) APPLIED
FOR BY PETITIONER, IT IS NOW THE RIPENED DUTY OF
RESPONDENTS, THROUGH RESPONDENT EMB REGIONAL
DIRECTOR, TO ISSUE SAID DOCUMENT IN FAVOR OF PETITIONER;
B. WHETHER OR NOT PETITIONER HAS EXHAUSTED AVAILABLE
ADMINISTRATIVE REMEDIES THROUGH AN APPEAL TO
RESPONDENT DENR SECRETARY WHO HAS SAT ON SAID APPEAL UP
TO THE PRESENT;
C. WHETHER OR NOT PETITIONER IS ENTITLED TO RECOVER
DAMAGES FROM RESPONDENTS IN THEIR PERSONAL CAPACITY.14
The petitioner insists that RD Lipayon already exercised his discretion by
finding that the application substantially complied with the procedural
aspects for review and by assigning Control No. CNC-02-080 to its
application; that after the petitioner complied with the requirements
enumerated in the August 26, 2002 letter of RD Lipayon, the EMB became
duty-bound to issue the CNC to the petitioner; that the EMB issued a CNC
to a similar project of the DPWH in the same area; that it filed an appeal with
the DENR Secretary, but the appeal remained unresolved; and that it brought
the petition for mandamus precisely as a speedier recourse.
In their comment, RD Lipayon and Canda aver that the act complained of
against them involved an exercise of discretion that could not be compelled
by mandamus; that the petitioner’s proposed project was located within an
environmentally critical area, and the activities to be done were so significant
that they would create massive earth movement and environmental
degradation; that the petitioner violated the rule against forum shopping; and
that the petitioner had no cause of action against them for failure to exhaust
administrative remedies.
On his part, the DENR Secretary, through the Solicitor General, contends
that the petition raises questions of fact that are not proper in a petition for
review; that the petitioner should have appealed to the CA under Rule 41 of
the Rules of Court; that the grant or denial of a CNC application is
discretionary and cannot be compelled by mandamus; and that the petitioner
failed to exhaust administrative remedies.
Accordingly, the Court is called upon to resolve, firstly, whether the appeal
directly to this Court from the RTC was proper, and, secondly, whether the
petition for mandamus was the correct recourse.
Ruling
The petition for review is denied for its lack of merit.
1.
Petitioner’s appeal is improper under Rule 45, Rules of Court
This appeal by certiorari is being taken under Rule 45, Rules of Court, whose
Section 1 expressly requires that the petition shall raise only questions of law
which must be distinctly set forth. Yet, the petitioner hereby raises a question
of fact whose resolution is decisive in this appeal. That issue of fact concerns
whether or not the petitioner established that its project was not located in
an environmentally critical area. For this reason, the Court is constrained to
deny due course to the petition for review.
It is a settled rule, indeed, that in the exercise of our power of review, the
Court is not a trier of facts and does not normally undertake the re-
examination of the evidence presented by the contending parties during the
trial of the case. The Court relies on the findings of fact of the Court of
Appeals or of the trial court, and accepts such findings as conclusive and
binding unless any of the following exceptions obtains, namely: (a) when the
findings are grounded entirely on speculation, surmises or conjectures; (b)
when the inference made is manifestly mistaken, absurd or impossible; (c)
when there is grave abuse of discretion; (d) when the judgment is based on
a misapprehension of facts; (e) when the findings of facts are conflicting; (f)
when in making its findings the Court of Appeals or the trial court went
beyond the issues of the case, or its findings are contrary to the admissions
of both the appellant and the appellee; (g) when the findings are contrary to
the trial court; (h) when the findings are conclusions without citation of
specific evidence on which they are based; (i) when the facts set forth in the
petition as well as in the petitioner’s main and reply briefs are not disputed
by the respondent; (j) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record; and (k)
when the Court of Appeals or the trial court manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered,
would justify a different conclusion.15 However, none of the aforementioned
exceptions applies herein.
2.
Mandamus was an improper remedy for petitioner
We dismiss the present recourse because the petitioner failed to exhaust the
available administrative remedies, and because it failed to show that it was
legally entitled to demand the performance of the act by the respondents.
It is axiomatic, to begin with, that a party who seeks the intervention of a
court of law upon an administrative concern should first avail himself of all
the remedies afforded by administrative processes. The issues that an
administrative agency is authorized to decide should not be summarily taken
away from it and submitted to a court of law without first giving the agency
the opportunity to dispose of the issues upon due deliberation.16 The court of
law must allow the administrative agency to carry out its functions and
discharge its responsibilities within the specialized areas of its competence.17
This rests on the theory that the administrative authority is in a better position
to resolve questions addressed to its particular expertise, and that errors
committed by subordinates in their resolution may be rectified by their
superiors if given a chance to do so.18
The records show that the petitioner failed to exhaust the available
administrative remedies. At the time RD Lipayon denied the petitioner’s
application for the CNC, Administrative Order No. 42 dated November 2,
200219 had just vested the authority to grant or deny applications for the ECC
in the Director and Regional Directors of the EMB. Notwithstanding the lack
of a specific implementing guideline to what office the ruling of the EMB
Regional Director was to be appealed, the petitioner could have been easily
guided in that regard by the Administrative Code of 1987, which provides
that the Director of a line bureau, such as the EMB,20 shall have supervision
and control over all division and other units, including regional offices, under
the bureau.21 Verily, supervision and control include the power to "review,
approve, reverse or modify acts and decisions of subordinate officials or
units."22 Accordingly, the petitioner should have appealed the EMB Regional
Director’s decision to the EMB Director, who exercised supervision and
control over the former.
It is relevant to mention that the DENR later promulgated Administrative
Order No. 2003-3023 in order to define where appeals should be taken,
providing as follows:
Section 6. Appeal
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:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
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.
The proponent or any stakeholder may file an appeal to the following:
1âw phi1

Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

Moreover, the petitioner states in its pleadings that it had a pending appeal
with the DENR Secretary. However, the records reveal that the subject of
1âw phi1

the appeal of the petitioner was an undated resolution of the DENR Regional
Director, Region VII, denying its application for the CNC,24 not the decision
of RD Lipayon. Nonetheless, even assuming that the pending appeal with
the DENR Secretary had related to RD Lipayon’s decision, the petitioner
should still have waited for the DENR Secretary to resolve the appeal in line
with the principle of exhaustion of administrative remedies. Its failure to do
so rendered its resort to mandamus in the RTC premature. The omission is
fatal, because mandamus is a remedy only when there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary course of law.25
Another reason for denying due course to this review is that the petitioner
did not establish that the grant of its application for the CNC was a purely
ministerial in nature on the part of RD Lipayon. Hence, mandamus was not
a proper remedy.
The CNC is a certification issued by the EMB certifying that a project is not
covered by the Environmental Impact Statement System (EIS System) and
that the project proponent is not required to secure an ECC.26 The EIS
System was established by Presidential Decree (P.D.) No. 1586 pursuant to
Section 4 of P.D. No. 1151 (Philippine Environmental Policy) that required
all entities to submit an EIS for projects that would have a significant effect
on the environment, thus:
Section 4. Environmental Impact Statements. – Pursuant to the above
enunciated policies and goals, all agencies and instrumentalities of the
national government, including government-owned or controlled
corporations, as well as private corporations, firms and entities shall prepare,
file and include in every action, project or undertaking which significantly
affects the quality of the environment a detailed statement on–
(a) the environmental impact of the proposed action, project or undertaking
(b) any adverse environmental effect which cannot be avoided should the
proposal be implemented
(c) alternative to the proposed action
(d) a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and enhancement of the
long-term productivity of the same; and
(e) whenever a proposal involves the use of depletable or non-renewable
resources, a finding must be made that such use and commitment are
warranted.
xxxx
P.D. No. 1586 exempted from the requirement of an EIS the projects and
areas not declared by the President of the Philippines as environmentally
critical,27 thus:
Section 5. Environmentally Non-Critical Projects. - All other projects,
undertakings and areas not declared by the Presidents as environmentally
critical shall be considered as non-critical and shall not be required to submit
an environmental impact statement. The National Environmental Protection
Council, thru the Ministry of Human Settlements may however require non-
critical projects and undertakings to provide additional environmental
safeguards as it may deem necessary.
On December 14, 1981, the President issued Proclamation No. 2146
declaring areas and types of projects as environmentally critical and within
the scope of the EIS System, as follows:
A. Environmentally Critical Projects
I. Heavy Industries
a. Non-ferrous metal industries
b. Iron and steel mills
c. Petroleum and petro-chemical industries including oil and gas
d. Smelting plants
II. Resource Extractive Industries
a. Major mining and quarrying projects
b. Forestry projects
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic-animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery Projects
1. Dikes for fishpond development projects
III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled, nuclear fueled, hydroelectric or
geothermal)
c. Major reclamation projects
d. Major roads and bridges.
B. Environmentally Critical Areas
1. All areas declared by law as national parks, watershed reserves, wildlife
preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or threatened
species of indigenous Philippine Wildlife (flora and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or tribes;
6. Areas frequently visited and/or hard-hit by natural calamities (geologic
hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;
9. Recharged areas of aquifers;
10. Water bodies characterized by one or any combination of the following
conditions;
a. tapped for domestic purposes
b. within the controlled and/or protected areas declared by appropriate
authorities
c. which support wildlife and fishery activities
11. Mangrove areas characterized by one or any combination of the following
conditions:
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing grounds;
d. which act as natural buffers against shore erosion, strong winds and storm
floods;
e. on which people are dependent for their livelihood.
12. Coral reef, characterized by one or any combination of the following
conditions:
a. with 50% and above live coralline cover;
b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
Projects not included in the foregoing enumeration were considered non-
critical to the environment and were entitled to the CNC.
The foregoing considerations indicate that the grant or denial of an
application for ECC/CNC is not an act that is purely ministerial in nature, but
one that involves the exercise of judgment and discretion by the EMB
Director or Regional Director, who must determine whether the project or
project area is classified as critical to the environment based on the
documents to be submitted by the applicant.
The petitioner maintains that RD Lipayon already exercised his discretion in
its case when he made his finding that the application substantially complied
with the procedural requirements for review. As such, he was then obliged
to issue the CNC once the petitioner had submitted the required
certifications.
The petitioner errs on two grounds.
Firstly, RD Lipayon had not yet fully exercised his discretion with regard to
the CNC application when he made his finding. It is clear that his finding
referred to the "procedural requirements for review" only. He had still to
decide on the substantive aspect of the application, that is, whether the
project and the project area were considered critical to the environment. In
fact, this was the reason why RD Lipayon required the petitioner to submit
certifications from the various government agencies concerned. Surely, the
required certifications were not mere formalities, because they would serve
as the bases for his decision on whether to grant or deny the application.
Secondly, there is no sufficient showing that the petitioner satisfactorily
complied with the requirement to submit the needed certifications. For one,
it submitted no certification to the effect that the project site was not within a
critical slope. Also, the PHIVOLCS’s certification showed that the project site
had experienced an Intensity VII earthquake in 1990, a fact that sufficed to
place the site in the category of "areas frequently visited and/or hard-hit by
natural calamities." Clearly, the petitioner failed to establish that it had the
legal right to be issued the CNC applied for, warranting the denial of its
application.
It is not amiss for us to observe, therefore, that the petitioner grossly
misunderstood the nature of the remedy of mandamus. To avoid similar
misunderstanding of the remedy hereafter, a short exposition on the nature
and office of the remedy is now appropriate.
The writ of mandamus is of very ancient and obscure origin. It is believed
that the writ was originally part of the class of writs or mandates issued by
the English sovereign to direct his subjects to perform a particular act or
duty.28 The earliest writs were in the form of letters missive, and were mere
personal commands. The command was a law in itself, from which there was
no appeal. The writ of mandamus was not only declaratory of a duty under
an existing law, but was a law in itself that imposed the duty, the performance
of which it commanded.29 The King was considered as the fountain and
source of justice, and when the law did not afford a remedy by the regular
forms of proceedings, the prerogative powers of the sovereign were invoked
in aid of the ordinary powers of the courts.30
A judicial writ of mandamus, issued in the King’s name out of the court of
King’s Bench that had a general supervisory power over all inferior
jurisdictions and officers, gradually supplanted the old personal command of
the sovereign.31 The court of King’s Bench, acting as the general guardian of
public rights and in the exercise of its authority to grant the writ, rendered the
writ of mandamus the suppletory means of substantial justice in every case
where there was no other specific legal remedy for a legal right, and ensured
that all official duties were fulfilled whenever the subject-matter was properly
within its control.32 Early on, the writ of mandamus was particularly used to
compel public authorities to return the petitioners to public offices from which
they had been unlawfully removed.33
Mandamus was, therefore, originally a purely prerogative writ emanating
from the King himself, superintending the police and preserving the peace
within the realm.34 It was allowed only in cases affecting the sovereign, or the
interest of the public at large.35 The writ of mandamus grew out of the
necessity to compel the inferior courts to exercise judicial and ministerial
powers invested in them by restraining their excesses, preventing their
negligence and restraining their denial of justice.36
Over time, the writ of mandamus has been stripped of its highly prerogative
features and has been assimilated to the nature of an ordinary remedy.
Nonetheless, the writ has remained to be an extraordinary remedy in the
sense that it is only issued in extraordinary cases and where the usual and
ordinary modes of proceeding and forms of remedy are powerless to afford
redress to a party aggrieved, and where without its aid there would be a
failure of justice.37
The writ of mandamus has also retained an important feature that sets it
apart from the other remedial writs, i.e., that it is used merely to compel
action and to coerce the performance of a pre-existing duty.38 In fact, a
doctrine well-embedded in our jurisprudence is that mandamus will issue
only when the petitioner has a clear legal right to the performance of the act
sought to be compelled and the respondent has an imperative duty to
perform the same.39 The petitioner bears the burden to show that there is
such a clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act.40
A key principle to be observed in dealing with petitions for mandamus is that
such extraordinary remedy lies to compel the performance of duties that are
purely ministerial in nature, not those that are discretionary.41 A purely
ministerial act or duty is one that an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of its own judgment upon the
propriety or impropriety of the act done. The duty is ministerial only when its
discharge requires neither the exercise of official discretion or judgment.42
The petitioner's disregard of the foregoing fundamental requisites for
mandamus rendered its petition in the RTC untenable and devoid of merit.
WHEREFORE, the Court DENIES the petition for review on certiorari; and
ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
BORACAY G.R. No. 196870
FOUNDATION, INC.,
Petitioner,
Present:

CARPIO,
VELASCO, JR.,
LEONARDO-DE
CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
THE PROVINCE OF MENDOZA,*
AKLAN, SERENO,
REPRESENTED BY REYES, and
GOVERNOR CARLITO PERLAS-BERNABE,
S. MARQUEZ, THE JJ.
PHILIPPINE
RECLAMATION Promulgated:
AUTHORITY, AND
THE DENR-EMB June 26, 2012
(REGION VI),
Respondents.
x------------------------------------------
--------x

DECISION

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration

that all the parties involved share common goals in pursuit of
certain primordial State policies and principles that are
enshrined in the Constitution and pertinent laws, such as the
protection of the environment, the empowerment of the local
government units, the promotion of tourism, and the
encouragement of the participation of the private sector. The
Court seeks to reconcile the respective roles, duties and
responsibilities of the petitioner and respondents in achieving
these shared goals within the context of our Constitution, laws
and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental

Protection Order in the nature of a continuing mandamus under
A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases, promulgated on April 29,
2010.
The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly

registered, non-stock domestic corporation. Its primary purpose
is to foster a united, concerted and environment-conscious
development of Boracay Island, thereby preserving and
maintaining its culture, natural beauty and ecological balance,
marking the island as the crown jewel of Philippine tourism, a
prime tourist destination in Asia and the whole world.[1] It
counts among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and similar
institutions; at least five community organizations; and several
environmentally-conscious residents and advocates.[2]

Respondent Province of Aklan (respondent Province) is a

political subdivision of the government created pursuant to
Republic Act No. 1414, represented by Honorable Carlito S.
Marquez, the Provincial Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent

PRA), formerly called the Public Estates Authority (PEA), is a
government entity created by Presidential Decree No. 1084,[3]
which states that one of the purposes for which respondent PRA
was created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead agency
primarily responsible for all reclamation projects in the country
under Executive Order No. 525, series of 1979. In June 2006,
the President of the Philippines issued Executive Order No. 543,
delegating the power to approve reclamation projects to PRA
through its governing Board, subject to compliance with
existing laws and rules and further subject to the condition that
reclamation contracts to be executed with any person or entity
(must) go through public bidding.[4]

Respondent Department of Environment and Natural Resources

Environmental Management Bureau (DENR-EMB), Regional
Office VI (respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized to issue
environmental compliance certificates regarding projects that
require the environments protection and management in the
region.[5]

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the

Western Visayas region of the Philippines and one of the countrys most
popular tourist destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No. 1801.[6] The island
comprises the barangays of Manoc-manoc, Balabag, and Yapak, all
within the municipality of Malay, in the province of Aklan.[7]

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive

powdery white-sand beaches which are the product
of the unique ecosystem dynamics of the area. The
island itself is known to come from the uplifted
remnants of an ancient reef platform. Its beaches, the
sandy land strip between the water and the area
currently occupied by numerous establishments, is
the primary draw for domestic and international
 tourists for its color, texture and other unique
characteristics. Needless to state, it is the premier
domestic and international tourist destination in the
Philippines.[8]

More than a decade ago, respondent Province built the Caticlan

Jetty Port and Passenger Terminal at Barangay Caticlan to be the main
gateway to Boracay. It also built the corresponding Cagban Jetty Port and
Passenger Terminal to be the receiving end for tourists in Boracay.
Respondent Province operates both ports to provide structural facilities
suited for locals, tourists and guests and to provide safety and security
measures.[9]

In 2005, Boracay 2010 Summit was held and participated in by

representatives from national government agencies, local government
units (LGUs), and the private sector. Petitioner was one of the organizers
and participants thereto. The Summit aimed to re-establish a common
vision of all stakeholders to ensure the conservation, restoration, and
preservation of Boracay Island and to develop an action plan that [would
allow] all sectors to work in concert among and with each other for the
long term benefit and sustainability of the island and the community.[10]
The Summit yielded a Terminal Report[11] stating that the participants had
shared their dream of having world-class land, water and air
infrastructure, as well as given their observations that government support
was lacking, infrastructure was poor, and, more importantly, the influx of
tourists to Boracay was increasing. The Report showed that there was a
need to expand the port facilities at Caticlan due to congestion in the
holding area of the existing port, caused by inadequate facilities, thus
tourists suffered long queues while waiting for the boat ride going to the
island.[12]

Respondent Province claimed that tourist arrivals to Boracay

reached approximately 649,559 in 2009 and 779,666 in 2010, and this was
expected to reach a record of 1 million tourist arrivals in the years to come.
Thus, respondent Province conceptualized the expansion of the port
facilities at Barangay Caticlan.[13]

The Sangguniang Barangay of Caticlan, Malay

Municipality, issued Resolution No. 13, s. 2008[14] on April 25,
2008 stating that it had learned that respondent Province had
filed an application with the DENR for a foreshore lease of areas
along the shorelines of Barangay Caticlan, and manifesting its
strong opposition to said application, as the proposed foreshore
lease practically covered almost all the coastlines of said
barangay, thereby technically diminishing its territorial
jurisdiction, once granted, and depriving its constituents of their
statutory right of preference in the development and utilization
of the natural resources within its jurisdiction. The resolution
further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan
regarding the proposed foreshore lease, which failure the
Sanggunian considered as an act of bad faith on the part of
respondent Province.[15]

On November 20, 2008, the Sangguniang Panlalawigan

of respondent Province approved Resolution No. 2008-369,[16]
formally authorizing Governor Marquez to enter into
negotiations towards the possibility of effecting self-liquidating
and income-producing development and livelihood projects to
be financed through bonds, debentures, securities, collaterals,
notes or other obligations as provided under Section 299 of the
Local Government Code, with the following priority projects:
(a) renovation/rehabilitation of the Caticlan/Cagban Passenger
Terminal Buildings and Jetty Ports; and (b) reclamation of a
portion of Caticlan foreshore for commercial purposes.[17] This
step was taken as respondent Provinces existing jetty port and
passenger terminal was funded through bond flotation, which
was successfully redeemed and paid ahead of the target date.
This was allegedly cited as one of the LGUs Best Practices
wherein respondent Province was given the appropriate
commendation.[18]

Respondent Province included the proposed expansion of

the port facilities at Barangay Caticlan in its 2009 Annual
Investment Plan,[19] envisioned as its project site the area
adjacent to the existing jetty port, and identified additional areas
along the coastline of Barangay Caticlan as the site for future
project expansion.[20]

Governor Marquez sent a letter to respondent PRA on March

12, 2009[21] expressing the interest of respondent Province to
reclaim about 2.64 hectares of land along the foreshores of
Barangay Caticlan, Municipality of Malay, Province of Aklan.

Sometime in April 2009, respondent Province entered into an

agreement with the Financial Advisor/Consultant that won in
the bidding process held a month before, to conduct the
necessary feasibility study of the proposed project for the
Renovation/Rehabilitation of the Caticlan Passenger Terminal
Building and Jetty Port, Enhancement and Recovery of Old
Caticlan Coastline, and Reclamation of a Portion of Foreshore
for Commercial Purposes (the Marina Project), in Malay,
Aklan.[22]

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan

of respondent Province issued Resolution No. 2009110,[23]
which authorized Governor Marquez to file an application
to reclaim the 2.64 hectares of foreshore area in Caticlan,
Malay, Aklan with respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came

up with a feasibility study which focused on the land
reclamation of 2.64 hectares by way of beach enhancement and
recovery of the old Caticlan coastline for the rehabilitation and
expansion of the existing jetty port, and for its future plans the
construction of commercial building and wellness center. The
financial component of the said study was Two Hundred Sixty
Million Pesos (P260,000,000.00). Its suggested financing
scheme was bond flotation.[24]

Meanwhile, the Sangguniang Bayan of the Municipality

of Malay expressed its strong opposition to the intended
foreshore lease application, through Resolution No. 044,[25]
approved on July 22, 2009, manifesting therein that respondent
Provinces foreshore lease application was for business
enterprise purposes for its benefit, at the expense of the local
government of Malay, which by statutory provisions was the
rightful entity to develop, utilize and reap benefits from the
natural resources found within its jurisdiction.[26]

In August 2009, a Preliminary Geohazard Assessment[27]

for the enhancement/expansion of the existing Caticlan Jetty
Port and Passenger Terminal through beach zone restoration
and Protective Marina Developments in Caticlan, Malay, Aklan
was completed.

Thereafter, Governor Marquez submitted an

Environmental Performance Report and Monitoring
Program (EPRMP)[28] to DENR-EMB RVI, which he had
attached to his letter[29] dated September 19, 2009, as an initial
step for securing an Environmental Compliance Certificate
(ECC). The letter reads in part:

With the project expected to start its construction implementation

next month, the province hereby assures your good office that it will
give preferential attention to and shall comply with whatever comments
that you may have on this EPRMP.[30] (Emphasis added.)

Respondent Province was then authorized to issue Caticlan Super

Marina Bonds for the purpose of funding the renovation of the Caticlan
Jetty Port and Passenger Terminal Building, and the reclamation of a
portion of the foreshore lease area for commercial purposes in Malay,
Aklan through Provincial Ordinance No. 2009-013, approved on
September 10, 2009. The said ordinance authorized Governor Marquez to
negotiate, sign and execute agreements in relation to the issuance of the
Caticlan Super Marina Bonds in the amount not exceeding
P260,000,000.00.[31]
 Subsequently, the Sangguniang Panlalawigan of the Province of
Aklan issued Provincial Ordinance No. 2009-015[32] on October 1,
2009, amending Provincial Ordinance No. 2009-013, authorizing the
bond flotation of the Province of Aklan through Governor Marquez to
fund the Marina Project and appropriate the entire proceeds of said bonds
for the project, and further authorizing Governor Marquez to negotiate,
sign and execute contracts or agreements pertinent to the transaction.[33]

Within the same month of October 2009, respondent

Province deliberated on the possible expansion from its original
proposed reclamation area of 2.64 hectares to forty (40) hectares
in order to maximize the utilization of its resources and as a
response to the findings of the Preliminary Geohazard
Assessment study which showed that the recession and retreat
of the shoreline caused by coastal erosion and scouring should
be the first major concern in the project site and nearby coastal
area. The study likewise indicated the vulnerability of the
coastal zone within the proposed project site and the nearby
coastal area due to the effects of sea level rise and climate
change which will greatly affect the social, economic, and
environmental situation of Caticlan and nearby Malay coastal
communities.[34]

In his letter dated October 22, 2009 addressed to

respondent PRA, Governor Marquez wrote:

With our substantial compliance with the

requirements under Administrative Order No. 2007-
2 relative to our request to PRA for approval of the
reclamation of the [proposed Beach Zone
Restoration and Protection Marine Development in
Barangays Caticlan and Manoc-Manoc] and as a
result of our discussion during the [meeting with the
respondent PRA on October 12, 2009], may we
respectfully submit a revised Reclamation Project
Description embodying certain revisions/changes
in the size and location of the areas to be
reclaimed. x x x.

On another note, we are pleased to inform

your Office that the bond flotation we have secured
with the Local Government Unit Guarantee
Corporation (LGUGC) has been finally approved
last October 14, 2009. This will pave the way for the
implementation of said project. Briefly, the Province
has been recognized by the Bureau of Local
Government Finance (BLGF) for its capability to
meet its loan obligations. x x x.

With the continued increase of tourists

coming to Boracay through Caticlan, the Province is
venturing into such development project with the end
in view of protection and/or restoring certain
segments of the shoreline in Barangays Caticlan
(Caticlan side) and Manoc-manoc (Boracay side)
which, as reported by experts, has been experiencing
tremendous coastal erosion.
 For the project to be self-liquidating,
however, we will be developing the reclaimed land
for commercial and tourism-related facilities and for
other complementary uses.[35] (Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan

enacted Resolution No. 2009-299[36] authorizing Governor Marquez to
enter into a Memorandum of Agreement (MOA) with respondent PRA in
the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the
areas adjacent to the jetty ports at Barangay Caticlan and Barangay
Manoc-manoc. The Sangguniang Panlalawigan approved the terms and
conditions of the necessary agreements for the implementation of the
bond flotation of respondent Province to fund the
renovation/rehabilitation of the existing jetty port by way of enhancement
and recovery of the Old Caticlan shoreline through reclamation of an area
of 2.64 hectares in the amount of P260,000,000.00 on December 1,
2009.[37]

Respondent Province gave an initial presentation of the project

with consultation to the Sangguniang Bayan of Malay[38] on December 9,
2009.

Respondent PRA approved the reclamation project on April 20,

2010 in its Resolution No. 4094 and authorized its General
Manager/Chief Executive Officer (CEO) to enter into a MOA with
respondent Province for the implementation of the reclamation
project.[39]

On April 27, 2010, DENR-EMB RVI issued to respondent

Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of
the Reclamation Project to the extent of 2.64 hectares to be done along
the Caticlan side beside the existing jetty port.[40]

On May 17, 2010, respondent Province entered into a MOA[41]

with respondent PRA. Under Article III, the Project was described therein
as follows:

The proposed Aklan Beach Zone

Restoration and Protection Marina Development
Project involves the reclamation and development
of approximately forty (40) hectares of foreshore
and offshore areas of the Municipality of Malay x x
x.

The land use development of the reclamation

project shall be for commercial, recreational and
institutional and other applicable uses.[42] (Emphases
supplied.)

It was at this point that respondent Province deemed it necessary to

conduct a series of what it calls information-education campaigns,
which provided the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the Municipality of
Malay, the residents of Barangay Caticlan and Boracay, the
stakeholders, and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows[43]:

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay,
Aklan;[44]

b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;[45]

c. July 31, 2010 at Barangay Caticlan Plaza;[46]

d. September 15, 2010 at the Office of the Provincial Governor with

Municipal Mayor of Malay Mayor John P. Yap;[47]

e. October 12, 2010 at the Office of the Provincial Governor with the
Provincial Development Council Executive Committee;[48] and

f. October 29, 2010 at the Office of the Provincial Governor with

Officials of LGU-Malay and Petitioner.[49]

Petitioner claims that during the public consultation meeting

belatedly called by respondent Province on June 17, 2010, respondent
Province presented the Reclamation Project and only then detailed the
actions that it had already undertaken, particularly: the issuance of the
Caticlan Super Marina Bonds; the execution of the MOA with respondent
PRA; the alleged conduct of an Environmental Impact Assessment (EIA)
study for the reclamation project; and the expansion of the project to
forty (40) hectares from 2.64 hectares.[50]

In Resolution No. 046, Series of 2010, adopted on June 23, 2010,

the Malay Municipality reiterated its strong opposition to respondent
Provinces project and denied its request for a favorable endorsement of
the Marina Project.[51]
 The Malay Municipality subsequently issued Resolution No. 016,
Series of 2010, adopted on August 3, 2010, to request respondent PRA
not to grant reclamation permit and notice to proceed to the Marina Project
of the [respondent] Provincial Government of Aklan located at Caticlan,
Malay, Aklan.[52]

In a letter[53] dated October 12, 2010, petitioner informed

respondent PRA of its opposition to the reclamation project, primarily for
the reason that, based on the opinion of Dr. Porfirio M. Alio, an expert
from the University of the Philippines Marine Science Institute (UPMSI),
which he rendered based on the documents submitted by respondent
Province to obtain the ECC, a full EIA study is required to assess the
reclamation projects likelihood of rendering critical and lasting effect on
Boracay considering the proximity in distance, geographical location,
current and wind direction, and many other environmental considerations
in the area. Petitioner noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted that respondent
Province failed to comply with certain mandatory provisions of the Local
Government Code, particularly, those requiring the project proponent to
conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of

2010, registering its opposition to the reclamation project to respondent
Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality,
and other concerned entities.[54]

Petitioner alleges that despite the Malay Municipalitys denial of

respondent Provinces request for a favorable endorsement, as well as the
strong opposition manifested both by Barangay Caticlan and petitioner as
an NGO, respondent Province still continued with the implementation of
the Reclamation Project.[55]
 On July 26, 2010, the Sangguniang Panlalawigan of respondent
Province set aside Resolution No. 046, s. 2010, of the Municipality of
Malay and manifested its support for the implementation of the aforesaid
project through its Resolution No. 2010-022.[56]

On July 27, 2010, the MOA was confirmed by respondent PRA

Board of Directors under its Resolution No. 4130. Respondent PRA
wrote to respondent Province on October 19, 2010, informing the latter to
proceed with the reclamation and development of phase 1 of site 1 of
its proposed project. Respondent PRA attached to said letter its
Evaluation Report dated October 18, 2010.[57]

Petitioner likewise received a copy of respondent PRAs letter

dated October 19, 2010, which authorized respondent Province to proceed
with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was
described as:

[A] seafront development involving

reclamation of an aggregate area of more or less,
forty (40) hectares in two (2) separate sites both in
Malay Municipality, Aklan Province. Site 1 is in
Brgy. Caticlan with a total area of 36.82 hectares
and Site 2 in Brgy. Manoc-Manoc, Boracay Island
with a total area of 3.18 hectares. Sites 1 and 2 are
on the opposite sides of Tabon Strait, about 1,200
meters apart. x x x. [58] (Emphases added.)
 The Sangguniang Panlalawigan of Aklan, through Resolution
No. 2010-034,[59] addressed the apprehensions of petitioner embodied in
its Resolution No. 001, s. 2010, and supported the implementation of the
project. Said resolution stated that the apprehensions of petitioner with
regard to the economic, social and political negative impacts of the
projects were mere perceptions and generalities and were not anchored on
definite scientific, social and political studies.

In the meantime, a study was commissioned by the Philippine

Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded by
the Department of Tourism (DOT) with the assistance of, among others,
petitioner. The study was conducted in November 2010 by several marine
biologists/experts from the Marine Environmental Resources Foundation
(MERF) of the UPMSI. The study was intended to determine the potential
impact of a reclamation project in the hydrodynamics of the strait and on
the coastal erosion patterns in the southern coast of Boracay Island and
along the coast of Caticlan.[60]

After noting the objections of the respective LGUs of Caticlan and

Malay, as well as the apprehensions of petitioner, respondent Province
issued a notice to the contractor on December 1, 2010 to commence with
the construction of the project.[61]

On April 4, 2011, the Sangguniang Panlalawigan of Aklan,

through its Committee on Cooperatives, Food, Agriculture, and
Environmental Protection and the Committee on Tourism, Trade, Industry
and Commerce, conducted a joint committee hearing wherein the study
undertaken by the MERF-UPMSI was discussed.[62] In attendance were
Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the
Provincial Government, and Dr. Cesar Villanoy, a professor from the
UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64
hectares, would only have insignificant effect on the hydrodynamics of
the strait traversing the coastline of Barangay Caticlan and Boracay,
hence, there was a distant possibility that it would affect the Boracay
coastline, which includes the famous white-sand beach of the island.[63]

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan

enacted Resolution No. 2011-065[64] noting the report on the survey of
the channel between Caticlan and Boracay conducted by the UPMSI in
relation to the effects of the ongoing reclamation to Boracay beaches, and
stating that Dr. Villanoy had admitted that nowhere in their study was it
pointed out that there would be an adverse effect on the white-sand beach
of Boracay.
During the First Quarter Regular Meeting of the Regional
Development Council, Region VI (RDC-VI) on April 16, 2011, it
approved and supported the subject project (covering 2.64 hectares)
through RDC-VI Resolution No. VI-26, series of 2011.[65]

Subsequently, Mr. Abriam sent a letter to Governor Marquez

dated April 25, 2011 stating that the study conducted by the UPMSI
confirms that the water flow across the Caticlan-Boracay channel is
primarily tide-driven, therefore, the marine scientists believe that the
2.64-hectare project of respondent Province would not significantly affect
the flow in the channel and would unlikely impact the Boracay beaches.
Based on this, PCCI-Boracay stated that it was not opposing the 2.64-
hectare Caticlan reclamation project on environmental grounds.[66]

On June 1, 2011, petitioner filed the instant Petition for

Environmental Protection Order/Issuance of the Writ of Continuing
Mandamus. On June 7, 2011, this Court issued a Temporary
Environmental Protection Order (TEPO) and ordered the respondents
to file their respective comments to the petition.[67]

After receiving a copy of the TEPO on June 9, 2011, respondent

Province immediately issued an order to the Provincial Engineering
Office and the concerned contractor to cease and desist from conducting
any construction activities until further orders from this Court.
The petition is premised on the following grounds:

I.

THE RESPONDENT PROVINCE, PROPONENT OF THE

RECLAMATION PROJECT, FAILED TO
COMPLY WITH RELEVANT RULES AND
REGULATIONS IN THE ACQUISITION OF AN
ECC.

A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN

ENVIRONMENTALLY CRITICAL AREAS REQUIRING THE
PERFORMANCE OF A FULL, OR PROGRAMMATIC,
ENVIRONMENTAL IMPACT ASSESSMENT.

B. RESPONDENT PROVINCE FAILED TO OBTAIN THE

FAVORABLE ENDORSEMENT OF THE LGU CONCERNED.

C. RESPONDENT PROVINCE FAILED TO CONDUCT THE

REQUIRED CONSULTATION PROCEDURES AS REQUIRED BY
THE LOCAL GOVERNMENT CODE.

D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL

ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED BY
LAW AND RELEVANT REGULATIONS.

II.
THE RECLAMATION OF LAND BORDERING THE
STRAIT BETWEEN CATICLAN AND
BORACAY SHALL ADVERSELY AFFECT THE
FRAIL ECOLOGICAL BALANCE OF THE
AREA.[68]

Petitioner objects to respondent Provinces classification of the

reclamation project as single instead of co-located, as non-
environmentally critical, and as a mere rehabilitation of the existing jetty
port. Petitioner points out that the reclamation project is on two sites
(which are situated on the opposite sides of Tabon Strait, about 1,200
meters apart):

36.82 hectares Site 1, in Bgy. Caticlan

3.18 hectares Site 2, in Manoc-manoc, Boracay Island[69]

Phase 1, which was started in December 2010 without the

necessary permits,[70] is located on the Caticlan side of a narrow strait
separating mainland Aklan from Boracay. In the implementation of the
project, respondent Province obtained only an ECC to conduct Phase 1,
instead of an ECC on the entire 40 hectares. Thus, petitioner argues that
respondent Province abused and exploited the Revised Procedural
Manual for DENR Administrative Order No. 30, Series of 2003
(DENR DAO 2003-30)[71] relating to the acquisition of an ECC by:
1. Declaring the reclamation project under Group II Projects-Non-
ECP (environmentally critical project) in ECA (environmentally
critical area) based on the type and size of the area, and

2. Failing to declare the reclamation project as a co-located project

application which would have required the Province to submit a
Programmatic Environmental Impact Statement (PEIS)[72] or
Programmatic Environmental [Performance] Report Management
Plan (PE[P]RMP).[73] (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on

which the classification above is based, which merely requires an
Environmental Impact Statement [EIS] for Group II projects) is patently
ultra vires, and respondent DENR-EMB RVI committed grave abuse of
discretion because the laws on EIS, namely, Presidential Decree Nos.
1151 and 1586, as well as Presidential Proclamation No. 2146, clearly
indicate that projects in environmentally critical areas are to be
immediately considered environmentally critical. Petitioner complains
that respondent Province applied for an ECC only for Phase 1; hence,
unlawfully
evading the requirement that co-located projects[74] within
Environmentally Critical Areas (ECAs) must submit a PEIS and/or
a PEPRMP.

Petitioner argues that respondent Province fraudulently classified

and misrepresented the project as a Non-ECP in an ECA, and as a single
project instead of a co-located one. The impact assessment allegedly
performed gives a patently erroneous and wrongly-premised appraisal of
the possible environmental impact of the reclamation project. Petitioner
contends that respondent Provinces choice of classification was designed
to avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI

willfully and deliberately disregarded its duty to ensure that the
environment is protected from harmful developmental projects because it
allegedly performed only a cursory and superficial review of the
documents submitted by the respondent Province for an ECC, failing to
note that all the information and data used by respondent Province in its
application for the ECC were all dated and not current, as data was
gathered in the late 1990s for the ECC issued in 1999 for the first jetty
port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored
the environmental impact to Boracay, which involves changes in the
structure of the coastline that could contribute to the changes in the
characteristics of the sand in the beaches of both Caticlan and Boracay.

Petitioner insists that reclamation of land at the Caticlan side will

unavoidably adversely affect the Boracay side and notes that the declared
objective of the reclamation project is for the exploitation of Boracays
tourist trade, since the project is intended to enhance support services
thereto. But, petitioner argues, the primary reason for Boracays popularity
is its white-sand beaches which will be negatively affected by the project.

Petitioner alleges that respondent PRA had required respondent

Province to obtain the favorable endorsement of the LGUs of Barangay
Caticlan and Malay Municipality pursuant to the consultation procedures
as required by the Local Government Code.[75] Petitioner asserts that the
reclamation project is in violation not only of laws on EIS but also of the
Local Government Code as respondent Province failed to enter into
proper consultations with the concerned LGUs. In fact, the Liga ng mga
Barangay-Malay Chapter also expressed strong opposition against the
project.[76]

Petitioner cites Sections 26 and 27 of the Local Government Code,

which require consultations if the project or program may cause pollution,
climactic change, depletion of non-renewable resources, etc. According
to petitioner, respondent Province ignored the LGUs opposition expressed
as early as 2008. Not only that, respondent Province belatedly called for
public consultation meetings on June 17 and July 28, 2010, after an ECC
had already been issued and the MOA between respondents PRA and
Province had already been executed. As the petitioner saw it, these were
not consultations but mere project presentations.

Petitioner claims that respondent Province, aided and abetted by

respondents PRA and DENR-EMB, ignored the spirit and letter of the
Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs) to
ensure that developmental projects are in line with sustainable
development of natural resources. The project was conceptualized without
considering alternatives.

Further, as to its allegation that respondent Province failed to

perform a full EIA, petitioner argues that while it is true that as of now,
only the Caticlan side has been issued an ECC, the entire project involves
the Boracay side, which should have been considered a co-located project.
Petitioner claims that any project involving Boracay requires a full
EIA since it is an ECA. Phase 1 of the project will affect Boracay and
Caticlan as they are separated only by a narrow strait; thus, it should be
considered an ECP. Therefore, the ECC and permit issued must be
invalidated and cancelled.

Petitioner contends that a study shows that the flow of the water
through a narrower channel due to the reclamation project will likely
divert sand transport off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait indicate stronger
sediment transport.[77] The white-sand beaches of Boracay and its
surrounding marine environment depend upon the natural flow of the
adjacent waters.

Regarding its claim that the reclamation of land bordering the

strait between Caticlan and Boracay shall adversely affect the frail
ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the
reclamation project on the land, it is undeniable that it will also adversely
affect the already frail ecological balance of the area. The effect of the
project would have been properly assessed if the proper EIA had been
performed prior to any implementation of the project.

According to petitioner, respondent Provinces intended purposes

do not prevail over its duty and obligation to protect the environment.
Petitioner believes that rehabilitation of the Jetty Port may be done
through other means.

In its Comment[78] dated June 21, 2011, respondent Province

claimed that application for reclamation of 40 hectares is advantageous
to the Provincial Government considering that its filing fee would only
cost Php20,000.00 plus Value Added Tax (VAT) which is also the
minimum fee as prescribed under Section 4.2 of Administrative Order No.
2007-2.[79]

Respondent Province considers the instant petition to be

premature; thus, it must necessarily fail for lack of cause of action due to
the failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent
Province, the petition primarily assailed the decision of respondent
DENR-EMB RVI in granting the ECC for the subject project consisting
of 2.64 hectares and sought the cancellation of the ECC for alleged failure
of respondent Province to submit proper documentation as required for its
issuance. Hence, the grounds relied upon by petitioner can be addressed
within the confines of administrative processes provided by law.

Respondent Province believes that under Section 5.4.3 of DENR

Administrative Order No. 2003-30 (DAO 2003-30),[80] the issuance of an
ECC[81] is an official decision of DENR-EMB RVI on the application of
a project proponent.[82] It cites Section 6 of DENR DAO 2003-30, which
provides for a remedy available to the party aggrieved by the final
decision on the proponents ECC applications.
 Respondent Province argues that the instant petition is anchored
on a wrong premise that results to petitioners unfounded fears and
baseless apprehensions. It is respondent Provinces contention that its
2.64-hectare reclamation project is considered as a stand alone project,
separate and independent from the approved area of 40 hectares. Thus,
petitioner should have observed the difference between the future
development plan of respondent Province from its actual project being
undertaken.[83]

Respondent Province clearly does not dispute the fact that it

revised its original application to respondent PRA from 2.64 hectares to
40 hectares. However, it claims that such revision is part of its future
plan, and implementation thereof is still subject to availability of funds,
independent scientific environmental study, separate application of ECC
and notice to proceed to be issued by respondent PRA.[84]

Respondent Province goes on to claim that [p]etitioners version of

the Caticlan jetty port expansion project is a bigger project which is still
at the conceptualization stage. Although this project was described in the
Notice to Proceed issued by respondent PRA to have two phases, 36.82
hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally
different from the [ongoing] Caticlan jetty port expansion project.[85]

Respondent Province says that the Accomplishment Report[86] of

its Engineering Office would attest that the actual project consists of 2.64
hectares only, as originally planned and conceptualized, which was even
reduced to 2.2 hectares due to some construction and design
modifications.

Thus, respondent Province alleges that from its standpoint, its

capability to reclaim is limited to 2.64 hectares only, based on respondent
PRAs Evaluation Report[87] dated October 18, 2010, which was in turn
the basis of the issuance of the Notice to Proceed dated October 19, 2010,
because the projects financial component is P260,000,000.00 only. Said
Evaluation Report indicates that the implementation of the other phases
of the project including site 2, which consists of the other portions of the
40-hectare area that includes a portion in Boracay, is still within the 10-
year period and will depend largely on the availability of funds of
respondent Province.[88]

So, even if respondent PRA approved an area that would total up

to 40 hectares, it was divided into phases in order to determine the period
of its implementation. Each phase was separate and independent because
the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved area
of 40 hectares could be implemented within a period of 10 years but this
would depend solely on the availability of funds.[89]

As far as respondent Province understands it, additional

reclamations not covered by the ECC, which only approved 2.64 hectares,
should undergo another EIA. If respondent Province intends to commence
the construction on the other component of the 40 hectares, then it agrees
that it is mandated to secure a new ECC.[90]

Respondent Province admits that it dreamt of a 40-hectare project,

even if it had originally planned and was at present only financially
equipped and legally compliant to undertake 2.64 hectares of the project,
and only as an expansion of its old jetty port.[91]

Respondent Province claims that it has complied with all the

necessary requirements for securing an ECC. On the issue that the
reclamation project is within an ECA requiring the performance of a full
or programmatic EIA, respondent Province reiterates that the idea of
expanding the area to 40 hectares is only a future plan. It only secured an
ECC for 2.64 hectares, based on the limits of its funding and authority.
From the beginning, its intention was to rehabilitate and expand the
existing jetty port terminal to accommodate an increasing projected
traffic. The subject project is specifically classified under DENR DAO
2003-30 on its Project Grouping Matrix for Determination of EIA Report
Type considered as Minor Reclamation Projects falling under Group II
Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the subject
project falls within this classification.

Consequently, respondent Province claims that petitioner erred in

considering the ongoing reclamation project at Caticlan, Malay, Aklan, as
co-located within an ECA.

Respondent Province, likewise argues that the 2.64-hectare project

is not a component of the approved 40-hectare area as it is originally
planned for the expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction plan of the said portion
in Boracay and it has no financial allocation to initiate any project on the
said Boracay portion.

Furthermore, respondent Province contends that the present

project is located in Caticlan while the alleged component that falls within
an ECA is in Boracay. Considering its geographical location, the two sites
cannot be considered as a contiguous area for the reason that it is separated
by a body of water a strait that traverses between the mainland Panay
wherein Caticlan is located and Boracay. Hence, it is erroneous to
consider the two sites as a co-located project within an ECA. Being a stand
alone project and an expansion of the existing jetty port, respondent
DENR-EMB RVI had required respondent Province to perform an
EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of
DENR DAO 2003-30.

Respondent Province contends that even if, granting for the sake
of argument, it had erroneously categorized its project as Non-ECP in an
ECA, this was not a final determination. Respondent DENR-EMB RVI,
which was the administrator of the EIS system, had the final decision on
this matter. Under DENR DAO 2003-30, an application for ECC, even
for a Category B2 project where an EPRMP is conducted, shall be
subjected to a review process. Respondent DENR-EMB RVI had the
authority to deny said application. Its Regional Director could either issue
an ECC for the project or deny the application. He may also require a
more comprehensive EIA study. The Regional Director issued the ECC
based on the EPRMP submitted by respondent Province and after the
same went through the EIA review process.

Thus, respondent Province concludes that petitioners allegation of

this being a co-located project is premature if not baseless as the bigger
reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and feasibility
studies to embark on another project.

Respondent Province claims that an ocular survey of the

reclamation project revealed that it had worked within the limits of the
ECC.[92]

With regard to petitioners allegation that respondent Province

failed to get the favorable endorsement of the concerned LGUs in
violation of the Local Government Code, respondent Province contends
that consultation vis--vis the favorable endorsement from the concerned
LGUs as contemplated under the Local Government Code are merely
tools to seek advice and not a power clothed upon the LGUs to unilaterally
approve or disapprove any government projects. Furthermore, such
endorsement is not necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section 5.3 of DENR
DAO 2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no

longer requires the issuance of permits and certifications as a pre-requisite
for the issuance of an ECC. Respondent Province claims to have
conducted consultative activities with LGUs in connection with Sections
26 and 27 of the Local Government Code. The vehement and staunch
objections of both the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of Malay, according to respondent Province, were
not rooted on its perceived impact upon the people and the community in
terms of environmental or ecological balance, but due to an alleged
conflict with their principal position to develop, utilize and reap benefits
from the natural resources found within its jurisdiction.[93] Respondent
Province argues that these concerns are not within the purview of the
Local Government Code. Furthermore, the Preliminary Geohazard
Assessment Report and EPRMP as well as Sangguniang Panlalawigan
Resolution Nos. 2010-022 and 2010-034 should address any
environmental issue they may raise.

Respondent Province posits that the spirit and intent of Sections

26 and 27 of the Local Government Code is to create an avenue for parties,
the proponent and the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the project. The duty to consult
does not automatically require adherence to the opinions during the
consultation process. It is allegedly not within the provisions to give the
full authority to the LGU concerned to unilaterally approve or disapprove
the project in the guise of requiring the proponent of securing its favorable
endorsement. In this case, petitioner is calling a halt to the project without
providing an alternative resolution to harmonize its position and that of
respondent Province.

Respondent Province claims that the EPRMP[94] would reveal

that:

[T]he area fronting the project site is practically composed

of sand. Dead coral communities may be found along
the vicinity. Thus, fish life at the project site is quite
scarce due to the absence of marine support systems
like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty
port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and
the substrate is sandy. It is of public knowledge that
the said foreshore area is being utilized by the
residents ever since as berthing or anchorage site of
their motorized banca. There will be no possibility of
any coral development therein because of its
continuous utilization. Likewise, the activity of the
strait that traverses between the main land Caticlan
and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within
the area if there is scientific human intervention,
which is absent up to the present.

In light of the foregoing premise, it casts

serious doubt on petitioners allegations pertaining to
the environmental effects of Respondent-LGUs 2.64
hectares reclamation project. The alleged
environmental impact of the subject project to the
beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project
would cause imminent, grave and irreparable injury
to the community.[95]
 Respondent Province prayed for the dissolution of the TEPO,
claiming that the rules provide that 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 suffer and subject
to the posting of a sufficient bond by the party or person enjoined.
Respondent Province contends that the TEPO would cause irreparable
damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants
of immediate area, including tourists and passengers serviced by the jetty
port, brought about by the abrupt cessation of development works.

As regards financial dislocation, the arguments of

respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had

issued to its creditors as the financing scheme in funding the present
project is by way of credit financing through bond flotation.

2. The funds are financed by a Guarantee Bank getting payment from

bonds, being sold to investors, which in turn would be paid by the
income that the project would realize or incur upon its completion.

3. While the project is under construction, respondent Province is

appropriating a portion of its Internal Revenue Allotment (IRA) budget
from the 20% development fund to defray the interest and principal
amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or
such other revenues or funds, as may be
permitted by law, are being used as security for
the payment of the said loan used for the projects
construction.

5. The inability of the subject project to earn revenues as

projected upon completion will compel the
Province to shoulder the full amount of the
obligation, starting from year 2012.

6. Respondent province is mandated to assign its IRA,

regular income and/or such other revenues or
funds as permitted by law; if project is stopped,
detriment of the public welfare and its
constituents.[96]
 As to the second ground for the dissolution of the TEPO,
respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to

environmental hazards most especially that reclaimed land if not properly
secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the

project. The embankment that was deposited on the project has no proper
concrete wave protection that might be washed out in the event that a
strong typhoon or big waves may occur affecting the strait and the
properties along the project site. It is already the rainy season and there is
a big possibility of typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that

had been washed out might be transferred to the adjoining properties
which could affect its natural environmental state.

4. It might result to the total alteration of the physical landscape

of the area attributing to environmental disturbance.

5. The lack of proper concrete wave protection or revetment

would cause the total erosion of the embankment
that has been dumped on the accomplished
area.[97]
 Respondent Province claims that petitioner will not stand to suffer
immediate, grave and irreparable injury or damage from the ongoing
project. The petitioners perceived fear of environmental destruction
brought about by its erroneous appreciation of available data is unfounded
and does not translate into a matter of extreme urgency. Thus, under the
Rules of Procedure on Environmental Cases, the TEPO may be dissolved.

Respondent PRA filed its Comment[98] on June 22, 2011. It

alleges that on June 24, 2006, Executive Order No. 543 delegated the
power to approve reclamation projects to respondent PRA through its
governing Board, subject to compliance with existing laws and rules and
further subject to the condition that reclamation contracts to be executed
with any person or entity (must) go through public bidding.

Section 4 of respondent PRAs Administrative Order No. 2007-2

provides for the approval process and procedures for various reclamation
projects to be undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 2009[99] regarding Aklans proposal to increase its
project to 40 hectares.

Respondent PRA contends that it was only after respondent

Province had complied with the requirements under the law that
respondent PRA, through its Board of Directors, approved the proposed
project under its Board Resolution No. 4094.[100] In the same Resolution,
respondent PRA Board authorized the General Manager/CEO to execute
a MOA with the Aklan provincial government to implement the
reclamation project under certain conditions.

The issue for respondent PRA was whether or not it approved the
respondent Provinces 2.64-hectare reclamation project proposal in willful
disregard of alleged numerous irregularities as claimed by petitioner.[101]

Respondent PRA claims that its approval of the Aklan

Reclamation Project was in accordance with law and its rules. Indeed, it
issued the notice to proceed only after Aklan had complied with all the
requirements imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project remains a plan
insofar as respondent PRA is concerned. What has been approved for
reclamation by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that it approved this
reclamation project after extensively reviewing the legal, technical,
financial, environmental, and operational aspects of the proposed
reclamation.[102]

One of the conditions that respondent PRA Board imposed before

approving the Aklan project was that no reclamation work could be started
until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part of
the required submissions to respondent PRA includes the drainage design
as approved by the Public Works Department and the ECC as issued by
the DENR, all of which the Aklan government must submit to respondent
PRA before starting any reclamation works.[103] Under Article IV(B)(3)
of the MOA between respondent PRA and Aklan, the latter is required to
submit, apart from the ECC, the following requirements for respondent
PRAs review and approval, as basis for the issuance of a Notice to Proceed
(NTP) for Reclamation Works:

(a) Land-form plan with technical description of the metes

and bounds of the same land-form;

(b) Final master development and land use plan for the
project;

(c) Detailed engineering studies, detailed engineering

design, plans and specification for reclamation works, reclamation plans
and methodology, plans for the sources of fill materials;
 (d) Drainage plan vis-a-vis the land-form approved by
DPWH Regional Office to include a cost effective and efficient drainage
system as may be required based on the results of the studies;

(e) Detailed project cost estimates and quantity take-off per

items of work of the rawland reclamation components, e.g. reclamation
containment structures and soil consolidation;

(f) Organizational chart of the construction arm, manning

table, equipment schedule for the project; and,

(g) Project timetable (PERT/CPM) for the entire project

construction period.[104]

In fact, respondent PRA further required respondent Province

under Article IV (B)(24) of the MOA to strictly comply with all
conditions of the DENR-EMB-issued ECC and/or comply with
pertinent local and international commitments of the Republic
of the Philippines to ensure environmental protection.[105]

In its August 11, 2010 letter,[106] respondent PRA referred for

respondent Provinces appropriate action petitioners Resolution
001, series of 2010 and Resolution 46, series of 2010, of the
Sangguniang Bayan of Malay. Governor Marquez wrote
respondent PRA[107] on September 16, 2010 informing it that
respondent Province had already met with the different officials
of Malay, furnishing respondent PRA with the copies of the
minutes of such meetings/presentations. Governor Marquez
also assured respondent PRA that it had complied with the
consultation requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent
Provinces project and in issuing the necessary NTP for Phase 1
of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all
pertinent issuances, especially the ECC issued by DENR-EMB
RVI.[108] Respondent PRA stresses that its earlier approval of
the 40-hectare reclamation project under its Resolution No.
4094, series of 2010, still requires a second level of compliance
requirements from the proponent. Respondent Province could
not possibly begin its reclamation works since respondent PRA
had yet to issue an NTP in its favor.

Respondent PRA alleges that prior to the issuance of the NTP

to respondent Province for Phase 1 of Site 1, it required the
submission of the following pre-construction documents:

(a) Land-Form Plan (with technical description);

(b) Site Development Plan/Land Use Plan including,

(i) sewer and drainage systems and

(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,

(f) The ECC.[109]

Respondent PRA claims that it was only after the evaluation of
the above submissions that it issued to respondent Province the
NTP, limited to the 2.64-hectare reclamation project.
Respondent PRA even emphasized in its evaluation report that
should respondent Province pursue the other phases of its
project, it would still require the submission of an ECC for each
succeeding phases before the start of any reclamation works.[110]

Respondent PRA, being the national governments arm in

regulating and coordinating all reclamation projects in the
Philippines a mandate conferred by law manifests that it is
incumbent upon it, in the exercise of its regulatory functions, to
diligently evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval. Once the
reclamation projects requirements set forth by law and related
rules have been complied with, respondent PRA is mandated to
approve the same. Respondent PRA claims, [w]ith all the
foregoing rigorous and detailed requirements submitted and
complied with by Aklan, and the attendant careful and
meticulous technical and legal evaluation by respondent PRA,
it cannot be argued that the reclamation permit it issued to Aklan
is founded upon numerous irregularities; as recklessly and
baselessly imputed by BFI.[111]

In its Comment[112] dated July 1, 2011, respondent DENR-

EMB RVI asserts that its act of issuing the ECC certifies that
the project had undergone the proper EIA process by assessing,
among others, the direct and indirect impact of the project on
the biophysical and human environment and ensuring that these
impacts are addressed by appropriate environmental protection
and enhancement measures, pursuant to Presidential Decree No.
1586, the Revised Procedural Manual for DENR DAO 2003-
30, and the existing rules and regulations.[113]

Respondent DENR-EMB RVI stresses that the declaration in

1978 of several islands, which includes Boracay as tourist zone
and marine reserve under Proclamation No. 1801, has no
relevance to the expansion project of Caticlan Jetty Port and
Passenger Terminal for the very reason that the project is not
located in the Island of Boracay, being located in Barangay
Caticlan, Malay, which is not a part of mainland Panay. It
admits that the site of the subject jetty port falls within the ECA
under Proclamation No. 2146 (1981), being within the category
of a water body. This was why respondent Province had
faithfully secured an ECC pursuant to the Revised Procedural
Manual for DENR DAO 2003-30 by submitting the necessary
documents as contained in the EPRMP on March 19, 2010,
which were the bases in granting ECC No. R6-1003-096-7100
(amended) on April 27, 2010 for the expansion of Caticlan Jetty
Port and Passenger Terminal, covering 2.64 hectares.[114]

Respondent DENR-EMB RVI claims that the issues raised by

the LGUs of Caticlan and Malay had been considered by the
DENR-Provincial Environment and Natural Resources Office
(PENRO), Aklan in the issuance of the Order[115] dated January
26, 2010, disregarding the claim of the Municipality of Malay,
Aklan of a portion of the foreshore land in Caticlan covered by
the application of the Province of Aklan; and another Order of
Rejection dated February 5, 2010 of the two foreshore
applications, namely FLA No. 060412-43A and FLA No.
060412-43B, of the Province of Aklan.[116]

Respondent DENR-EMB RVI contends that the supporting

documents attached to the EPRMP for the issuance of an ECC
were merely for the expansion and modernization of the old
jetty port in Barangay Caticlan covering 2.64 hectares, and not
the 40-hectare reclamation project in Barangay Caticlan and
Boracay. The previous letter of respondent Province dated
October 14, 2009 addressed to DENR-EMB RVI Regional
Executive Director, would show that the reclamation project
will cover approximately 2.6 hectares.[117] This application for
ECC was not officially accepted due to lack of requirements or
documents.

Although petitioner insists that the project involves 40

hectares in two sites, respondent DENR-EMB RVI looked at
the documents submitted by respondent Province and saw that
the subject area covered by the ECC application and
subsequently granted with ECC-R6-1003-096-7100 consists
only of 2.64 hectares; hence, respondent DENR-EMB RVI
could not comment on the excess area.[118]

Respondent DENR-EMB RVI admits that as regards the

classification of the 2.64-hectare reclamation project under Non
ECP in ECA, this does not fall within the definition of a co-located
project because the subject project is merely an expansion of the old
Caticlan Jetty Port, which had a previously issued ECC (ECC No.
0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a
PEIS or PEPRMP, is required.[119]
 Respondent Province submitted to respondent DENR-EMB RVI
the following documents contained in the EPRMP:

a. The Observations on the Floor Bottom and its Marine

Resources at the Proposed Jetty Ports at Caticlan and Manok-manok,
Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and

b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines

and Geosciences Bureau (MGB), Central Office and Engr. Roger Esto,
Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled Preliminary Geo-hazard Assessment for the Enhancement of the
Existing Caticlan Jetty Port Terminal through Beach Zone Restoration
and Protective Marina Development in Malay, Aklan.

Respondent DENR-EMB RVI claims that the above two scientific

studies were enough for it to arrive at a best professional judgment to issue
an amended ECC for the Aklan Marina Project covering 2.64
hectares.[120] Furthermore, to confirm that the 2.64-hectare reclamation
has no significant negative impact with the surrounding environment
particularly in Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that [i]t is very important to
highlight that the input data in the [MERF- UPMSI] study utilized the [40-
hectare] reclamation and [200-meter] width seaward using the tidal and
wave modelling.[121] The study showed that the reclamation of 2.64
hectares had no effect to the hydrodynamics of the strait between
Barangay Caticlan and Boracay.

Respondent DENR-EMB RVI affirms that no permits and/or

clearances from National Government Agencies (NGAs) and LGUs are
required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled Simplifying the Requirements of ECC or CNC Applications; that
the EPRMP was evaluated and processed based on the Revised Procedural
Manual for DENR DAO 2003-30 which resulted to the issuance of ECC-
R6-1003-096-7100; and that the ECC is not a permit per se but a planning
tool for LGUs to consider in its decision whether or not to issue a local
permit.[122]

Respondent DENR-EMB RVI concludes that in filing this case,

petitioner had bypassed and deprived the DENR Secretary of the
opportunity to review and/or reverse the decision of his subordinate
office, EMB RVI pursuant to the Revised Procedural Manual for DENR
DAO 2003-30. There is no extreme urgency that necessitates the granting
of Mandamus or issuance of TEPO that put to balance between the life
and death of the petitioner or present grave or irreparable damage to
environment.[123]

After receiving the above Comments from all the respondents, the
Court set the case for oral arguments on September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a

Manifestation and Motion[124] praying for the dismissal of the petition,
as the province was no longer pursuing the implementation of the
succeeding phases of the project due to its inability to comply with Article
IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner
had become moot. Respondent Province alleges that the petition is
premised on a serious misappreciation of the real extent of the contested
reclamation project as certainly the ECC covered only a total of 2,691
square meters located in Barangay Caticlan, Malay, Aklan; and although
the MOA spoke of 40 hectares, respondent Provinces submission of
documents to respondent PRA pertaining to said area was but the first of
a two-step process of approval. Respondent Province claims that its
failure to comply with the documentary requirements of respondent PRA
within the period provided, or 120 working days from the effectivity of
the MOA, indicated its waiver to pursue the remainder of the project.[125]
Respondent Province further manifested:
 Confirming this in a letter dated 12 August
[126]
2011, Governor Marquez informed respondent
PRA that the Province of Aklan is no longer pursuing
the implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our
inability to comply with Article IV B.2 (3) of the
MOA; hence, the existing MOA will cover only the
project area of 2.64 hectares.

In his reply-letter dated August 22, 2011,[127] [respondent] PRA

General Manager informed Governor Marquez that the
[respondent] PRA Board of Directors has given [respondent] PRA
the authority to confirm the position of the Province of Aklan that
the Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and
development of the 2.64 hectares, more or less.

It is undisputed from the start that the

coverage of the Project is in fact limited to 2.64
hectares, as evidenced by the NTP issued by
respondent PRA. The recent exchange of
correspondence between respondents Province of
Aklan and [respondent] PRA further confirms the
intent of the parties all along. Hence, the Project
subject of the petition, without doubt, covers only
2.64 and not 40 hectares as feared. This completely
changes the extent of the Project and, consequently,
moots the issues and fears expressed by the
petitioner.[128] (Emphasis supplied.)
 Based on the above contentions, respondent Province
prays that the petition be dismissed as no further justiciable
controversy exists since the feared adverse effect to Boracay
Islands ecology had become academic all together.[129]

The Court heard the parties oral arguments on September

13, 2011 and gave the latter twenty (20) days thereafter to file
their respective memoranda.

Respondent Province filed another Manifestation and

Motion,[130] which the Court received on April 2, 2012 stating
that:

1. it had submitted the required documents and studies to

respondent DENR-EMB RVI before an ECC was issued in its
favor;
2. it had substantially complied with the requirements
provided under PRA Administrative Order 2007-2, which
compliance caused respondent PRAs Board to approve the
reclamation project; and
3. it had conducted a series of consultative [presentations]
relative to the reclamation project before the LGU of Malay
Municipality, the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.

Respondent Province further manifested that the

Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled
Resolution Favorably Endorsing the 2.6 Hectares
Reclamation/MARINA Project of the Aklan Provincial
Government at Caticlan Coastline[131] and that the Sangguniang
Bayan of the Municipality of Malay, Aklan enacted
Resolution No. 020, series of 2012, entitled Resolution
Endorsing the 2.6 Hectares Reclamation Project of the
Provincial Government of Aklan Located at Barangay Caticlan,
Malay, Aklan.[132]

Respondent Province claims that its compliance with the

requirements of respondents DENR-EMB RVI and PRA that
led to the approval of the reclamation project by the said
government agencies, as well as the recent enactments of the
Barangay Council of Caticlan and the Sangguniang Bayan of
the Municipality of Malay favorably endorsing the said project,
had categorically addressed all the issues raised by the
Petitioner in its Petition dated June 1, 2011. Respondent
Province prays as follows:

WHEREFORE, premises considered, it is

most respectfully prayed of this Honorable Court that
after due proceedings, the following be rendered:

1. The Temporary Environmental Protection Order (TEPO) it issued on

June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are
just and equitable under the premises. (Emphases in the original.)

ISSUES
 The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for having been

rendered moot and academic

II. Whether or not the petition is premature because petitioner

failed to exhaust administrative remedies before filing this case

III. Whether or not respondent Province failed to perform a full EIA

as required by laws and regulations based on the scope and classification
of the project

IV. Whether or not respondent Province complied with all the

requirements under the pertinent laws and regulations

V. Whether or not there was proper, timely, and sufficient public

consultation for the project
DISCUSSION

On the issue of whether or not the Petition should be

dismissed for having been rendered moot and academic
 Respondent Province claims in its Manifestation and
Motion filed on April 2, 2012 that with the alleged favorable
endorsement of the reclamation project by the Sangguniang
Barangay of Caticlan and the Sangguniang Bayan of the
Municipality of Malay, all the issues raised by petitioner had
already been addressed, and this petition should be dismissed
for being moot and academic.

On the contrary, a close reading of the two LGUs

respective resolutions would reveal that they are not sufficient
to render the petition moot and academic, as there are explicit
conditions imposed that must be complied with by respondent
Province. In Resolution No. 003, series of 2012, of the
Sangguniang Barangay of Caticlan it is stated that any vertical
structures to be constructed shall be subject for barangay
endorsement.[133] Clearly, what the barangay endorsed was the
reclamation only, and not the entire project that includes the
construction of a commercial building and wellness center, and
other tourism-related facilities. Petitioners objections, as may
be recalled, pertain not only to the reclamation per se, but also
to the building to be constructed and the entire projects
perceived ill effects to the surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang

Bayan of Malay[134] is even more specific. It reads in part:
WHEREAS, noble it seems the reclamation
project to the effect that it will generate scores of
benefits for the Local Government of Malay in terms
of income and employment for its constituents, but
the fact cannot be denied that the project will take
its toll on the environment especially on the
nearby fragile island of Boracay and the fact also
remains that the project will eventually displace
the local transportation operators/cooperatives;

WHEREAS, considering the sensitivity of

the project, this Honorable Body through the
Committee where this matter was referred conducted
several consultations/committee hearings with
concerned departments and the private sector
specifically Boracay Foundation, Inc. and they are
one in its belief that this Local Government Unit
has never been against development so long as
compliance with the law and proper procedures
have been observed and that paramount
consideration have been given to the environment
 lest we disturb the balance of nature to the end
that progress will be brought to naught;

WHEREAS, time and again, to ensure a

healthy intergovernmental relations, this August
Body requires no less than transparency and faithful
commitment from the Provincial Government of
Aklan in the process of going through these
improvements in the Municipality because it once
fell prey to infidelities in matters of governance;

WHEREAS, as a condition for the grant of

this endorsement and to address all issues and
concerns, this Honorable Council necessitates a
sincere commitment from the Provincial
Government of Aklan to the end that:

1. To allocate an office space to LGU-Malay within the building in the

reclaimed area;

2. To convene the Cagban and Caticlan Jetty Port Management Board

before the resumption of the reclamation project;

3. That the reclamation project shall be limited only to 2.6 hectares in

Barangay Caticlan and not beyond;
4. That the local transportation operators/cooperatives will not be
displaced; and

5. The Provincial Government of Aklan conduct a simultaneous

comprehensive study on the environmental impact of the
reclamation project especially during Habagat and Amihan seasons
and put in place as early as possible mitigating measures on the
effect of the project to the environment.

WHEREAS, having presented these

stipulations, failure to comply herewith will leave
this August Body no choice but to revoke this
endorsement, hence faithful compliance of the
commitment of the Provincial Government is
highly appealed for[.][135] (Emphases added.)

The Sangguniang Bayan of Malay obviously imposed

explicit conditions for respondent Province to comply with on
pain of revocation of its endorsement of the project, including
the need to conduct a comprehensive study on the
environmental impact of the reclamation project, which is the
heart of the petition before us. Therefore, the contents of the two
resolutions submitted by respondent Province do not support its
conclusion that the subsequent favorable endorsement of the
LGUs had already addressed all the issues raised and rendered
the instant petition moot and academic.

On the issue of failure to exhaust administrative remedies

 Respondents, in essence, argue that the present petition
should be dismissed for petitioners failure to exhaust
administrative remedies and even to observe the hierarchy of
courts. Furthermore, as the petition questions the issuance of the
ECC and the NTP, this involves factual and technical
verification, which are more properly within the expertise of the
concerned government agencies.

Respondents anchor their argument on Section 6, Article II of

DENR DAO 2003-30, which provides:

Section 6. Appeal

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:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

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.
The proponent or any stakeholder may file an appeal to the following:

Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB
Director
EMB Central Office Director Office of the DENR
Secretary
DENR Secretary Office
of the
Preside
nt

(Emphases supplied.)

Respondents argue that since there is an administrative

appeal provided for, then petitioner is duty bound to observe the
same and may not be granted recourse to the regular courts for
its failure to do so.

We do not agree with respondents appreciation of the

applicability of the rule on exhaustion of administrative
remedies in this case. We are reminded of our ruling in Pagara
v. Court of Appeals,[136] which summarized our earlier decisions
on the procedural requirement of exhaustion of administrative
remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a
hard and fast rule. It is not applicable (1) where the question in
dispute is purely a legal one, or (2) where the controverted act is patently
illegal or was performed without jurisdiction or in excess of jurisdiction;
or (3) where the respondent is a department secretary, whose acts as an
alter ego of the President bear the implied or assumed approval of the
latter, unless actually disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial intervention, -
Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230;
Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs.
Subido, L-21691, September 15, 1967, 21 SCRA 127.

Said principle may also be disregarded when it does not provide a

plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43
SCRA 291), when there is no due process observed (Villanos vs. Subido,
45 SCRA 299), or where the protestant has no other recourse (Sta.
Maria vs. Lopez, 31 SCRA 637).[137] (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for

under Section 6 of DENR DAO 2003-30 is only applicable,
based on the first sentence thereof, if the person or entity
charged with the duty to exhaust the administrative remedy of
appeal to the appropriate government agency has been a party
or has been made a party in the proceedings wherein the
decision to be appealed was rendered. It has been established
by the facts that petitioner was never made a party to the
proceedings before respondent DENR-EMB RVI. Petitioner
was only informed that the project had already been approved
after the ECC was already granted.[138] Not being a party to the
said proceedings, it does not appear that petitioner was officially
furnished a copy of the decision, from which the 15-day period
to appeal should be reckoned, and which would warrant the
application of Section 6, Article II of DENR DAO 2003-30.

Although petitioner was not a party to the proceedings

where the decision to issue an ECC was rendered, it stands to
be aggrieved by the decision,[139] because it claims that the
reclamation of land on the Caticlan side would unavoidably
adversely affect the Boracay side, where petitioners members
own establishments engaged in the tourism trade. As noted
earlier, petitioner contends that the declared objective of the
reclamation project is to exploit Boracays tourism trade because
the project is intended to enhance support services thereto;
however, this objective would not be achieved since the white-
sand beaches for which Boracay is famous might be negatively
affected by the project. Petitioners conclusion is that respondent
Province, aided and abetted by respondents PRA and DENR-
EMB RVI, ignored the spirit and letter of our environmental
laws, and should thus be compelled to perform their duties
under said laws.

The new Rules of Procedure for Environmental Cases,

A.M. No. 09-6-8-SC, provides a relief for petitioner under the
writ of continuing mandamus, which is a special civil action that
may be availed of to compel the performance of an act
specifically enjoined by law[140] and which provides for the
issuance of a TEPO as an auxiliary remedy prior to the issuance
of the writ itself.[141] The Rationale of the said Rules explains
the writ in this wise:
Environmental law highlights the shift in the
focal-point from the initiation of regulation by
 Congress to the implementation of regulatory
programs by the appropriate government agencies.

Thus, a government agencys inaction, if any, has serious

implications on the future of environmental law enforcement.
Private individuals, to the extent that they seek to change the scope
of the regulatory process, will have to rely on such agencies to take
the initial incentives, which may require a judicial component.
Accordingly, questions regarding the propriety of an agencys action
or inaction will need to be analyzed.

This point is emphasized in the availability of

the remedy of the writ of mandamus, which allows
for the enforcement of the conduct of the tasks to
which the writ pertains: the performance of a legal
duty.[142] (Emphases added.)

The writ of continuing mandamus permits the court to

retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the
courts decision and, in order to do this, the court may compel
the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor
compliance with its decision.[143]
According to petitioner, respondent Province acted
pursuant to a MOA with respondent PRA that was conditioned
upon, among others, a properly-secured ECC from respondent
DENR-EMB RVI. For this reason, petitioner seeks to compel
respondent Province to comply with certain environmental
laws, rules, and procedures that it claims were either
circumvented or ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8, Section 1,
A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing
mandamus.When any agency or instrumentality of
the government or officer thereof unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust or station in connection with the
enforcement or violation of an environmental law
rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty,
attaching thereto supporting evidence, specifying
that the petition concerns an environmental law, rule
or regulation, and praying that judgment be rendered
commanding the respondent to do an act or series of
acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the
malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The
petition shall also contain a sworn certification of
non-forum shopping.
 SECTION 2. Where to file the petition.The
petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the
Court of Appeals or the Supreme Court.

Petitioner had three options where to file this case under

the rule: the Regional Trial Court exercising jurisdiction over
the territory where the actionable neglect or omission occurred,
the Court of Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy
in the ordinary course of law to determine the questions of
unique national and local importance raised here that pertain to
laws and rules for environmental protection, thus it was justified
in coming to this Court.
Having resolved the procedural issue, we now move to
the substantive issues.

On the issues of whether, based on the scope and

classification of the project, a full EIA is required by laws
and regulations, and whether respondent Province
complied with all the requirements under the pertinent
laws and regulations

Petitioners arguments on this issue hinges upon its claim

that the reclamation project is misclassified as a single project
when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation
project is merely an expansion of the existing jetty port, when
the project descriptions embodied in the different documents
filed by respondent Province describe commercial
establishments to be built, among others, to raise revenues for
the LGU; thus, it should have been classified as a new project.
Petitioner likewise cries foul to the manner by which respondent
Province allegedly circumvented the documentary requirements
of the DENR-EMB RVI by the act of connecting the
reclamation project with its previous project in 1999 and
claiming that the new project is a mere expansion of the
previous one.

As previously discussed, respondent Province filed a

Manifestation and Motion stating that the ECC issued by
respondent DENR-EMB RVI covered an area of 2,691 square
meters in Caticlan, and its application for reclamation of 40
hectares with respondent PRA was conditioned on its
submission of specific documents within 120 days. Respondent
Province claims that its failure to comply with said condition
indicated its waiver to pursue the succeeding phases of the
reclamation project and that the subject matter of this case had
thus been limited to 2.64 hectares. Respondent PRA, for its part,
declared through its General Manager that the Aklan Beach
Zone Restoration and Protection Marine Development Project
will now be confined to the reclamation and development of the
2.64 hectares, more or less.[144]

The Court notes such manifestation of respondent

Province. Assuming, however, that the area involved in the
subject reclamation project has been limited to 2.64 hectares,
this case has not become moot and academic, as alleged by
respondents, because the Court still has to check whether
respondents had complied with all applicable environmental
laws, rules, and regulations pertaining to the actual reclamation
project.

We recognize at this point that the DENR is the

government agency vested with delegated powers to review and
evaluate all EIA reports, and to grant or deny ECCs to project
proponents.[145] It is the DENR that has the duty to implement
the EIS system. It appears, however, that respondent DENR-
EMB RVIs evaluation of this reclamation project was
problematic, based on the valid questions raised by petitioner.

Being the administrator of the EIS System, respondent

DENR-EMB RVIs submissions bear great weight in this case.
However, the following are the issues that put in question the
wisdom of respondent DENR-EMB RVI in issuing the ECC:

1. Its approval of respondent Provinces classification of the

project as a mere expansion of the existing jetty port in
Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single
instead of a co-located project;
3. The lack of prior public consultations and approval of local
government agencies; and
4. The lack of comprehensive studies regarding the impact of
the reclamation project to the environment.
 The above issues as raised put in question the sufficiency
of the evaluation of the project by respondent DENR-EMB
RVI.

Nature of the project

The first question must be answered by respondent

DENR-EMB RVI as the agency with the expertise and authority
to state whether this is a new project, subject to the more
rigorous environmental impact study requested by petitioner, or
it is a mere expansion of the existing jetty port facility.

The second issue refers to the classification of the project

by respondent Province, approved by respondent DENR-EMB
RVI, as single instead of co-located. Under the Revised
Procedural Manual, the Summary List of Additional Non-
Environmentally-Critical Project (NECP) Types in ECAs
Classified under Group II (Table I-2) lists buildings, storage
facilities and other structures as a separate item from transport
terminal facilities. This creates the question of whether this
project should be considered as consisting of more than one type
of activity, and should more properly be classified as co-located,
under the following definition from the same Manual, which
reads:

f) Group IV (Co-located Projects in either ECA or

NECA): A co-located project is a group of
single projects, under one or more
proponents/locators, which are located in
a contiguous area and managed by one
administrator, who is also the ECC
 applicant. The co-located project may be an
economic zone or industrial park, or a mix of
projects within a catchment, watershed or
river basin, or any other geographical,
political or economic unit of area. Since the
location or threshold of specific projects
within the contiguous area will yet be derived
from the EIA process based on the carrying
capacity of the project environment, the
nature of the project is called programmatic.
(Emphasis added.)

Respondent DENR-EMB RVI should conduct a thorough

and detailed evaluation of the project to address the question of
whether this could be deemed as a group of single projects
(transport terminal facility, building, etc.) in a contiguous area
managed by respondent Province, or as a single project.

The third item in the above enumeration will be discussed

as a separate issue.

The answer to the fourth question depends on the final

classification of the project under items 1 and 3 above because
the type of EIA study required under the Revised Procedural
Manual depends on such classification.

The very definition of an EIA points to what was most

likely neglected by respondent Province as project proponent,
and what was in turn overlooked by respondent DENR-EMB
RVI, for it is defined as follows:

An [EIA] is a process that involves predicting and

evaluating the likely impacts of a project (including
cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It
also includes designing appropriate preventive, mitigating
and enhancement measures addressing these consequences
to protect the environment and the communitys welfare.[146]
(Emphases supplied.)

Thus, the EIA process must have been able to predict the
likely impact of the reclamation project to the environment and
to prevent any harm that may otherwise be caused.

The project now before us involves reclamation of land

that is more than five times the size of the original reclaimed
land. Furthermore, the area prior to construction merely
contained a jetty port, whereas the proposed expansion, as
described in the EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more, and we
quote:
 The expansion project will be constructed at
the north side of the existing jetty port and terminal
that will have a total area of 2.64 hectares, more or
less, after reclamation. The Phase 1 of the project
construction costing around P260 million includes
the following:

1. Reclamation - 3,000 sq m (expansion of jetty port)

2. Reclamation - 13,500 sq m (buildable area)

3. Terminal annex building - 250 sq m

4. 2-storey commercial building 2,500 sq m (1,750 sq m

of leasable space)

5. Health and wellness center

6. Access road - 12 m (wide)

7. Parking, perimeter fences, lighting and water

treatment sewerage system

8. Rehabilitation of existing jetty port and terminal

xxxx

The succeeding phases of the project will consist of [further]

reclamation, completion of the commercial center
building, bay walk commercial strip, staff building,
ferry terminal, a cable car system and wharf marina.
This will entail an additional estimated cost of P785
million bringing the total investment requirement to
about P1.0 billion.[147] (Emphases added.)

As may be gleaned from the breakdown of the 2.64 hectares as

described by respondent Province above, a significant portion
of the reclaimed area would be devoted to the construction of a
commercial building, and the area to be utilized for the
expansion of the jetty port consists of a mere 3,000 square
meters (sq. m). To be true to its definition, the EIA report
submitted by respondent Province should at the very least
predict the impact that the construction of the new buildings on
the reclaimed land would have on the surrounding environment.
These new constructions and their environmental effects were
not covered by the old studies that respondent Province
previously submitted for the construction of the original jetty
port in 1999, and which it re-submitted in its application for
ECC in this alleged expansion, instead of conducting updated
and more comprehensive studies.

Any impact on the Boracay side cannot be totally

ignored, as Caticlan and Boracay are separated only by a narrow
strait. This becomes more imperative because of the significant
contributions of Boracays white-sand beach to the countrys
tourism trade, which requires respondent Province to proceed
with utmost caution in implementing projects within its
vicinity.

We had occasion to emphasize the duty of local

government units to ensure the quality of the environment under
Presidential Decree No. 1586 in Republic of the Philippines v.
The City of Davao,[148] wherein we held:

Section 15 of Republic Act 7160, otherwise

known as the Local Government Code, defines a
local government unit as a body politic and corporate
endowed with powers to be exercised by it in
 conformity with law. As such, it performs dual
functions, governmental and proprietary.
Governmental functions are those that concern the
health, safety and the advancement of the public
good or welfare as affecting the public generally.
Proprietary functions are those that seek to obtain
special corporate benefits or earn pecuniary profit
and intended for private advantage and benefit. When
exercising governmental powers and performing
governmental duties, an LGU is an agency of the
national government. When engaged in corporate
activities, it acts as an agent of the community in the
administration of local affairs.

Found in Section 16 of the Local Government Code is the duty of the

LGUs to promote the peoples right to a balanced ecology. Pursuant to
this, an LGU, like the City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment,
which is the very same objective of PD 1586.

xxxx

Section 4 of PD 1586 clearly states that 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. The
Civil Code defines a person as either natural or
 juridical. The state and its political subdivisions,
i.e., the local government units are juridical
persons. Undoubtedly therefore, local
government units are not excluded from the
coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that

said law intends to implement the policy of the state
to achieve a balance between socio-economic
development and environmental protection, which
are the twin goals of sustainable development. The
above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a
comprehensive and integrated environmental
protection program where all the sectors of the
community are involved, i.e., the government and
the private sectors. The local government units, as
part of the machinery of the government, cannot
therefore be deemed as outside the scope of the
EIS system.[149] (Emphases supplied.)

The Court chooses to remand these matters to respondent

DENR-EMB RVI for it to make a proper study, and if it should
find necessary, to require respondent Province to address these
environmental issues raised by petitioner and submit the correct
EIA report as required by the projects specifications. The Court
requires respondent DENR-EMB RVI to complete its study and
submit a report within a non-extendible period of three months.
Respondent DENR-EMB RVI should establish to the Court in
said report why the ECC it issued for the subject project should
not be canceled.

Lack of prior public consultation

 The Local Government Code establishes the duties of
national government agencies in the maintenance of ecological
balance, and requires them to secure prior public consultation
and approval of local government units for the projects
described therein.

In the case before us, the national agency involved is

respondent PRA. Even if the project proponent is the local
government of Aklan, it is respondent PRA which authorized
the reclamation, being the exclusive agency of the government
to undertake reclamation nationwide. Hence, it was necessary
for respondent Province to go through respondent PRA and to
execute a MOA, wherein respondent PRAs authority to reclaim
was delegated to respondent Province. Respondent DENR-
EMB RVI, regional office of the DENR, is also a national
government institution which is tasked with the issuance of the
ECC that is a prerequisite to projects covered by environmental
laws such as the one at bar.

This project can be classified as a national project that

affects the environmental and ecological balance of local
communities, and is covered by the requirements found in the
Local Government Code provisions that are quoted below:

Section 26. Duty of National Government Agencies in the

Maintenance of Ecological Balance. - It shall be the duty of every
national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any
project or program that may cause pollution, climatic change, depletion
of non-renewable resources, loss of crop land, rangeland, or forest cover,
and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall

be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.

In Lina, Jr. v. Pao,[150] we held that Section 27 of the Local

Government Code applies only to national programs and/or
projects which are to be implemented in a particular local
community[151] and that it should be read in conjunction with
Section 26. We held further in this manner:

Thus, the projects and programs mentioned in

Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated
in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate
certain animal or plant species from the face of the
planet; and (6) other projects or programs that may
call for the eviction of a particular group of people
residing in the locality where these will be
implemented. Obviously, none of these effects will
 be produced by the introduction of lotto in the
province of Laguna.[152] (Emphasis added.)

During the oral arguments held on September 13, 2011,

it was established that this project as described above falls under
Section 26 because the commercial establishments to be built
on phase 1, as described in the EPRMP quoted above, could
cause pollution as it could generate garbage, sewage, and
possible toxic fuel discharge.[153]

Our ruling in Province of Rizal v. Executive Secretary[154] is

instructive:

We reiterated this doctrine in the recent case

of Bangus Fry Fisherfolk v. Lanzanas, where we held
that there was no statutory requirement for the
sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and
27 are inapplicable to projects which are not
environmentally critical.

Moreover, Section 447, which enumerates

the powers, duties and functions of the municipality,
 grants the sangguniang bayan the power to, among
other things, enact ordinances, approve resolutions
and appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section
16 of th(e) Code. These include:

(1) Approving ordinances and passing

resolutions to protect the environment
and impose appropriate penalties for
acts which endanger the environment,
such as dynamite fishing and other
forms of destructive fishing, illegal
logging and smuggling of logs,
smuggling of natural resources
products and of endangered species of
flora and fauna, slash and burn
farming, and such other activities
which result in pollution, acceleration
of eutrophication of rivers and lakes,
or of ecological imbalance; [Section
447 (1)(vi)]

(2) Prescribing reasonable limits and restraints

on the use of property within the
jurisdiction of the municipality,
adopting a comprehensive land use
plan for the municipality,
 reclassifying land within the
jurisdiction of the city, subject to the
pertinent provisions of this Code,
enacting integrated zoning
ordinances in consonance with the
approved comprehensive land use
plan, subject to existing laws, rules
and regulations; establishing fire
limits or zones, particularly in
populous centers; and regulating the
construction, repair or modification
of buildings within said fire limits or
zones in accordance with the
provisions of this Code; [Section 447
(2)(vi-ix)]

(3) Approving ordinances which shall ensure the

efficient and effective delivery of the
basic services and facilities as
provided for under Section 17 of this
Code, and in addition to said services
and facilities, providing for the
establishment, maintenance,
protection, and conservation of
communal forests and watersheds,
tree parks, greenbelts, mangroves,
and other similar forest development
projects and, subject to existing laws,
establishing and providing for the
maintenance, repair and operation of
an efficient waterworks system to
supply water for the inhabitants and
purifying the source of the water
supply; regulating the construction,
maintenance, repair and use of
hydrants, pumps, cisterns and
reservoirs; protecting the purity and
quantity of the water supply of the
municipality and, for this purpose,
extending the coverage of appropriate
ordinances over all territory within
the drainage area of said water supply
and within one hundred (100) meters
of the reservoir, conduit, canal,
aqueduct, pumping station, or
watershed used in connection with the
water service; and regulating the
consumption, use or wastage of
water. [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must
be met before a national project that affects the environmental and
ecological balance of local communities can be implemented: prior
consultation with the affected local communities, and prior approval
of the project by the appropriate sanggunian. Absent either of these
mandatory requirements, the projects implementation is illegal.[155]
(Emphasis added.)

Based on the above, therefore, prior consultations and prior

approval are required by law to have been conducted and
secured by the respondent Province. Accordingly, the
information dissemination conducted months after the ECC
had already been issued was insufficient to comply with this
requirement under the Local Government Code. Had they been
conducted properly, the prior public consultation should have
considered the ecological or environmental concerns of the
stakeholders and studied measures alternative to the project, to
avoid or minimize adverse environmental impact or damage.
In fact, respondent Province once tried to obtain the favorable
endorsement of the Sangguniang Bayan of Malay, but this was
denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

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.
(Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring

public consultations, the same should be initiated early so that
concerns of stakeholders could be taken into consideration in
the EIA study. In this case, respondent Province had already
filed its ECC application before it met with the local
government units of Malay and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits

and/or clearances from National Government Agencies (NGAs)
and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC
requirements of consultation and approval apply in this case.
This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys
greater weight under our hierarchy of laws.
 Subsequent to the information campaign of respondent
Province, the Municipality of Malay and the Liga ng mga
Barangay-Malay Chapter still opposed the project. Thus, when
respondent Province commenced the implementation project, it
violated Section 27 of the LGC, which clearly enunciates that
[no] project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2(c)
and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained.

The lack of prior public consultation and approval is not

corrected by the subsequent endorsement of the reclamation
project by the Sangguniang Barangay of Caticlan on February
13, 2012, and the Sangguniang Bayan of the Municipality of
Malay on February 28, 2012, which were both undoubtedly
achieved at the urging and insistence of respondent Province.
As we have established above, the respective resolutions issued
by the LGUs concerned did not render this petition moot and
academic.

It is clear that both petitioner and respondent Province are

interested in the promotion of tourism in Boracay and the
protection of the environment, lest they kill the proverbial hen
that lays the golden egg. At the beginning of this decision, we
mentioned that there are common goals of national significance
that are very apparent from both the petitioners and the
respondents respective pleadings and memoranda.
 The parties are evidently in accord in seeking to uphold
the mandate found in Article II, Declaration of Principles and
State Policies, of the 1987 Constitution, which we quote below:

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.

xxxx

SECTION 20. The State recognizes the

indispensable role of the private sector, encourages
private enterprise, and provides incentives to needed
investments.
The protection of the environment in accordance with the
aforesaid constitutional mandate is the aim, among others, of
Presidential Decree No. 1586, Establishing an Environmental
Impact Statement System, Including Other Environmental
Management Related Measures and For Other Purposes, which
declared in its first Section that it is the policy of the State to
attain and maintain a rational and orderly balance between
socio-economic growth and environmental protection.

The parties undoubtedly too agree as to the importance of

promoting tourism, pursuant to Section 2 of Republic Act No.
9593, or The Tourism Act of 2009, which reads:

SECTION 2. Declaration of Policy. The

State declares tourism as an indispensable
element of the national economy and an industry
of national interest and importance, which must be
harnessed as an engine of socioeconomic growth and
cultural affirmation to generate investment, foreign
exchange and employment, and to continue to mold
an enhanced sense of national pride for all Filipinos.
(Emphasis ours.)

The primordial role of local government units under the

Constitution and the Local Government Code of 1991 in the
subject matter of this case is also unquestionable. The Local
Government Code of 1991 (Republic Act No. 7160) pertinently
provides:
 Section 2. Declaration of Policy. - (a) It is
hereby declared the policy of the State that the
territorial and political subdivisions of the State
shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest
development as self-reliant communities and
make them more effective partners in the
attainment of national goals. Toward this end, the
State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities, and resources. The
process of decentralization shall proceed from the
national government to the local government
units.[156] (Emphases ours.)

As shown by the above provisions of our laws and rules,

the speedy and smooth resolution of these issues would benefit
all the parties. Thus, respondent Provinces cooperation with
respondent DENR-EMB RVI in the Court-mandated review of
the proper classification and environmental impact of the
reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby
PARTIALLY GRANTED. The TEPO issued by this Court
is hereby converted into a writ of continuing mandamus
specifically as follows:
1. Respondent Department of Environment and Natural
Resources-Environmental Management Bureau
Regional Office VI shall revisit and review the
following matters:

a. its classification of the reclamation project as a single

instead of a co-located project;
b. its approval of respondent Provinces classification of the
project as a mere expansion of the existing jetty
port in Caticlan, instead of classifying it as a
new project; and
c. the impact of the reclamation project to the environment
based on new, updated, and comprehensive
studies, which should forthwith be ordered by
respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the

following:

a. fully cooperate with respondent DENR-EMB RVI in its

review of the reclamation project proposal and
submit to the latter the appropriate report and
study; and
b. secure approvals from local government units and hold
proper consultations with non-governmental
organizations and other stakeholders and
sectors concerned as required by Section 27 in
relation to Section 26 of the Local Government
Code.
3. Respondent Philippine Reclamation Authority shall
closely monitor the submission by respondent Province of
the requirements to be issued by respondent DENR-EMB
RVI in connection to the environmental concerns raised by
petitioner, and shall coordinate with respondent Province
in modifying the MOA, if necessary, based on the findings
of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the
respondents The Province of Aklan, represented
by Governor Carlito S. Marquez, The Philippine
Reclamation Authority, and The DENR-EMB
(Region VI) are mandated to submit their
respective reports to this Court regarding their
compliance with the requirements set forth in this
Decision no later than three (3) months from the
date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned
contractor/s, and/or their agents, representatives
or persons acting in their place or stead, shall
immediately cease and desist from continuing the
implementation of the project covered by ECC-
R6-1003-096-7100 until further orders from this
Court. For this purpose, the respondents shall
report within five (5) days to this Court the status
of the project as of their receipt of this Decision,
copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO