Good news for environmental justice

The new environmental rules can be described as progressive, even revolutionary, in its protection of the environment and in ensuring effective access to environmental justice. The rules, which govern the procedure in all cases involving environmental and natural resources laws, are pro-environment, pro-poor and, if implemented well, can be an important step forward for environmental justice in the Philippines.

The new rules were approved  April 13, 2010 by the Supreme Court en banc in their session in Baguio City; it will take effect and will be officially launched on Thursday, April 29 in a ceremony at the Supreme Court. No less than Chief Justice Reynato S. Puno led the drafting committee composed of Supreme Court Justices, Judges and environmental experts. Earlier, the Chief Justice created a Technical Working Group (disclosure: I co-chaired the TWG with SC Justice Presbitero J. Velasco) that produced an initial draft. This draft was presented and validated in consultations with stakeholders during an environmental forum convened by the Supreme Court (also in Baguio City) exactly a year ago.

The environmental rules provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties, introduces and adopts innovations and best practices for better implementation of environmental laws, and enable courts to monitor and exact compliance with orders and judgments in environmental cases. The rules consolidates legal precedents achieved by environmental activists in the last two decades, including the concept of intergenerational equity first recognized by the Supreme Court in the much-heralded 1994 case of Oposa v. Factoran and the doctrine of continuing mandamus in the more recent case involving the clean-up of Manila Bay where the Court decided to keep the case alive until such time that the bay is actually cleaned up by the government agencies concerned

Under the new rules, Courts can issue Temporary Environmental Protection Orders (similar to Temporary Restraining Orders/Preliminary Injunctions) which allow speedy actions to protect the environment; these orders can be made permanent as appropriate. They can also promulgate “consent decrees” which are settlements between concerned parties based on public interest and public policy to protect and preserve the environment. The environmental rules also protect government personnel and environmental advocates from harassment by providing for strict rules against SLAPP (Strategic lawsuit against public participation) cases. SLAPP cases are used by environmental violators to inconvenience, even threaten public officials or citizens who dare prosecute them for their actions. Finally, the new rules addresses many problems related to the rules of evidence that environmental legal practitioners and judges have had to deal with. But the most revolutionary innovation of the  environmental rules is the introduction of a new legal weapon for environmental protection – the Writ of Kalikasan (Nature).

The Writ of Kalikasan is an original idea first proposed by Chief Justice Puno more than a year ago. It is similar in concept to the Writ of Amparo (used to prevent human rights abuses) but with a focus on environmental protection. As an international environmental lawyer, who has practiced environmental law in many countries, I know that the Writ of Kalikasan is the first and only one of its kind in the world. On this, the Philippines truly lead.

Kalikasan is a remedy available to persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Put simply, in the biggest cases where actual or potential environmental damage is enormous, affected persons can petition directly the Supreme Court or the Court of Appeals for the issuance of the Writ of Kalikasan. Kalikasan can be used to stop destructive logging, irresponsible mining, unabated air and water pollution, indiscriminate land conversion, etc. It is heaven-sent especially for poor and vulnerable communities and individuals, such as farmers, indigenous peoples, women and children, and those who have been powerless to defend themselves against large-scale environmental and development aggression.

In uncertain times, even in what many consider “bad times”, there are also signs of hope, some good news. The Rules of Procedure for Environmental Cases is one of those. Long after most of its decisions are forgotten, the Puno Court will be remembered for this contribution to environmental protection.