Clean water is non-negotiable

Last August 6, 2019, the Supreme Court released a decision, which if affirmed by denying the pending motions for reconsideration, would be the most important environmental decision it has ever made. Maynilad vs DENR will be hailed in the future for its vision, decisiveness, and impact on Metro Manila’s waterways – Manila Bay, Pasig River, Laguna Lake, and other water bodies in this metropolis.

Maynilad is a decision far more important than Oposa vs Factoran in 1994 that recognized the right of citizens to a sound environment and the standing of future generations to be represented in present controversies that will affect them in the future. As good as that decision was, it did not result in protecting our forests as that case did not result in the cancellation of the timber license agreements that was wrecking havoc on our forests. Logging continued on for another decade and millions of hectares of forests were lost because of that.

Maynilad is a decision that will have more impact than Concerned Citizens vs MMDA decided in 2008. In that case, the Supreme Court ordered government agencies and concerned private actors, including the protagonists in this case Maynilad Water Services Inc., Manila Water Company Inc., and the Metropolitan Waterworks and Sewerage System (MWSS), to clean up Manila Bay. That too was a great decision, introducing a new environmental writ of Continuing Mandamus. But eleven years later, Manila Bay is many times dirtier than when Concerned Citizens was decided. Not only has the government agencies and the private sector failed to comply with the order, but by the local governments and national agencies allowing more development – malls, casinos, reclamation projects, etc. – things have turned for the worse for Manila Bay.

This case could be different. In essence, the Court upheld the Department of Environment and Natural Resources (DENR) and found the two water companies Maynilad Water and Manila Water, jointly with the MWSS, liable for fines for violation of the Philippine Clean Water Act by not installing as required by law a sewerage system for Metro Manila. Maynilad was fined for the total amount of PhP 921,464,184.00 while Manila Water is found liable for the total amount of PhP 921,464,184.00. Both companies have filed motions for reconsideration and have launched a public relations campaign to reverse the decision, warning that our water bills will increase as a consequence of the decision.

These are the same tactics employed by oil companies in the 1990s when they tried to delay as long as possible the phase out of lead gasoline. As it was then, what is at stake is public health. Already, there is resurgence, an outbreak of polio that in my view is not attributable to Public Attorney Persida Acosta’s legal work on dengvaxia. The state of sanitation in the country, including Metro Manila, is also to blame. 

For the record, I do not support Attorney Acosta’s prosecution of government officials for dengvaxia as the evidence beyond reasonable doubt for cases like this are near impossible to obtain; what is always a better strategy is to go after those with deep pockets, the companies that created the problem (Sanofi in the case of dengvaxia) in the first place out of pursuit for profit. 

In the same way, it’s not consumers and ordinary people that are causing and accelerating the climate emergency – its the large carbon emitters – the oil, coal, cement, big agricultural (meat, soy bean, etc.), palm oil, and similar companies that are to blame.

This is exactly what the DENR and the Supreme Court does in the Maynilad case. Thankfully they did not go after the usual suspects – the poor, informal settlers that we blame for polluting Manila Bay. Its not them – it’s the government through the MWSS and the water companies entrusted with responsibility to be the stewards of our water resources that must bear the responsibility for our dirty water.

Clearly the Supreme Court, speaking eloquently and clearly through Associate Justice Ramon Paul Hernando (this is his first major opinion, according to Associate Justice Marvic Leonen in his concurrence) understands what is at stake in this controversy over the water companies’ responsibility for our water resources. “All told”, according to the Court, “the case before Us is monumental.” It explains why:

“Water is not a mere commodity for sale and consumption but a natural asset to be protected and conserved. Sanitation is its corollary constant, as a poor state of sewerage systems is one of the pillars of people’s miseries. We have a collective responsibility to preserve water resources and improve sanitation facilities for future generations.

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As humanity have always known, water is one of the most essential resources in the world and its preservation a top priority. It is an ever-active but unsung hero in human progress – a natural resource vital for conservation of life, environmental protection, and economic development.

It cannot be gainsaid that the role of water spans from the nuclear to the astronomical. Yet this “giver of life” is threatened by various adversities. Local incidents of water scarcity are fast becoming normal occurrences because of extended El Nino conditions resulting from climate change. Our sewerage systems are antiquated, if not defunct or nonexistent, and far too neglected – the fact that urban informal settlers by the creeks use the same as their bathrooms and trash bins has reached the status of common knowledge. That water has become an ironically expensive resource is ever more apparent, and unstable access to potable water is afflicting more and more areas over time. While their importance is all too obvious, the state of the Philippines’ water supply and water sanitation appear hopelessly grim.

The principal duty of the State and the water industry to supply drinking water and provide top-notch wastewater services through provisions of sewage and septage treatments to households and businesses needs no further emphasis. People have perpetually guarded themselves against water contamination and have evolved from conveying raw waste to natural bodies of water to devising complex sewerage systems. In more ways than one, water and water quality has been a strategic resource which can cause considerable health, sanitation, and biodiversity impacts. Its sociological effects also proliferate in the cultural and economic lives of each individual.”

Acknowledging the basic tenet that water is a vital part of human existence, the Supreme Court introduces in Maynilad vs DENR the Pubic Trust doctrine. This is an excellent development and long-warranted not just for water resources but also for all utilization of natural resources whether by the state or by private entities the state entrusts the utilization of natural resources too.

Justice Hernando’s opinion is brilliant and innovative as it links the better known doctrines of the Regalian doctrine and parens patriae to the Public Trust doctrine using the latter to give a new interpretation to the former doctrines, filling up gaps in the current jurisprudence.

Justice Leonen’s concurring opinion is also brilliant in nuancing the same doctrines and emphasizing the significance of the introduction of Public Trust in our jurisprudence.

For sure, the result of this new approach to natural resources it that it puts an additional strain upon the duty of the water industry to comply with the laws and regulations of the land. And that is good for public health and for all of us. 

In my next column, I will elaborate on the reasoning of the court and how it reached this great environmental outcome.


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