Water as a public trust

The Supreme Court could not be as clear in Maynilad vs. DENR, decided in August this year and which I summarized last Saturday: “Water is not a mere commodity for sale and consumption but a natural asset to be protected and conserved. Sanitation is its corollary constant […]” “We have a collective responsibility to preserve water resources and improve sanitation facilities for future generations.”

This is a monumental decision, as the Court phrases it especially in the realm of environmental policy, public health, utilities regulation, concessionaire agreements, and privatization. Indeed, as I wrote in my previous column, this is probably the best environmental decision the Philippine Supreme Court has ever issued. It should affirm it in toto and not give the Metropolitan Waterworks and Sewerage System and the two private water utilities Maynila Water Services and Manila Water any leeway or pathway to escape liability. It should also not allow the companies to pass on the costs of the fines to consumers.

Maynilad was a unanimous Supreme Court decision, with 12 of the 14 Justices then serving on the bench signing on to the brilliant and magnificent decision written by novice Associate Justice Ramon Paul L. Hernando. Assistant Court Administrator and SC Spokesperson Atty. Brian Hosaka said that Justice Diosdado M. Peralta and Justice Andres B. Reyes, Jr. did not take part in the case. Peralta’s wife, CA Justice Fernanda Lampas-Peralta, concurred in one of the cases that were subject of the petitions consolidated before the Supreme Court. Reyes was also a member of the division which ruled in one of the cases when he was still with the Court of Appeals.

The case of Maynilad is about the violation of the water concessionaires, Manila Water and Maynilad, of the Clean Water Act of 2004 (CWA), through its “blatant apathy” in complying with their obligations. They have failed to “provide, install, operate, and maintain adequate Wastewater Treatment Facilities (WWTFs) for sewerage system[s] resulting in the degraded quality and beneficial use of the receiving bodies of water leading to Manila Bay, and [for] which [they have] directly forestalled the DENR’s mandate to implement the operational plan for the rehabilitation and restoration of Manila Bay and its river tributaries.” Such violation was in clear contravention of the five-year period mandated in the CWA’s Section 8. The allegations made were based from the findings stemming from the “test results of water samples taken from Manila Bay which showed that the quality of water near the area has worsened without improvement in all parameters.”

To decide Maynilad vs. DENR, the Supreme Court connected the more established Regalian and parens patriae doctrines to the concept of public trust, using the latter to develop a more systematic and integrated framework of utilizing natural resources, one which is more consistent with sustainable development and environmental protection. To quote the Court:

“The Regalian doctrine is an exercise of the State’s sovereign power as owner of lands of the public domain and of the patrimony of the nation. Sources of water form part of this patrimony.

The vastness of this patrimony precludes the State from managing the same entirely by itself. In the interest of quality and efficiency, it thus outsources assistance from private entities, but this must be delimited and controlled for the protection of the general welfare.

Hand-in-hand with police power in the promotion of general welfare is the doctrine of parens patriae. It focuses on the role of the state as a ‘sovereign’ and expresses the inherent power and authority of the state to provide protection of the person and property of a person non sui juris, Under the doctrine, the state has the sovereign power of guardianship over persons of disability, and in the execution of the doctrine the legislature is possessed of inherent power to provide protection to persons non sui Juris and to make and enforce rules and regulations as it deems proper for the management of their property. Parens patriae means ‘father of his country,’ and refers to the State as a last-ditch provider of protection to those unable to care and fend for themselves. It can be said that Filipino consumers have become such persons of disability deserving protection by the State, as their welfare are being increasingly downplayed, endangered, and overwhelmed by business pursuits.

While the Regalian doctrine is state ownership over natural resources, police power is state regulation through legislation, and parens patriae is the default state responsibility to look after the defenseless, there remains a limbo on a flexible state policy bringing these doctrines into a cohesive whole, enshrining the objects of public interest, and backing the security of the people, rights, and resources from general neglect, private greed, and even from the own excesses of the State. We fill this void through the Public Trust Doctrine.”

Maynilad laid down the basic tenets of the “Public Trust Doctrine” as applied in our jurisdiction. The doctrine “speaks of an imposed duty upon the State and its representative of continuing supervision over the taking and use of appropriated water.” “Thus, ‘[p]arties who acquired rights in trust property [only hold] these rights subject to the trust and, therefore, could assert no vested right to use those rights in a manner harmful to the trust.’” As cited by the Court, “[i]n National Audubon Society v. Superior Court of Alpine County, a California Supreme Court decision, it worded the doctrine as that which—[the state had the power to reconsider past allocation decisions even though an agency had made those decisions after due consideration of their effect on the public trust. This conclusion reflected the view that water users could not acquire a vested property right in the water itself; they merely obtained a usufructuary right to the water].”

Further elaborated in academic literature, and as cited by the Court, “that ‘[p]art of this consciousness involves restoring the view of public and state ownership of certain natural resources that benefit all. [… ]” Public trust holds “that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. A clear declaration of public ownership, the doctrine reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of present and future generations and embodies key principles of environmental protection: stewardship, communal responsibility, and sustainability.”

According to the Court:

“The Public Trust Doctrine, while derived from English common law and American jurisprudence, has firm Constitutional and statutory moorings in our jurisdiction. The doctrine speaks f an imposed duty upon the State and its representative of continuing supervision over the taking and use of appropriated water.Thus, “[p]arties who acquired rights in trust property [only hold] these rights subject to the trust and, therefore, could assert no vested right to use those rights in a manner harmful to the trust.

The public is regarded as the beneficial owner of trust resources, and courts can enforce the public trust doctrine even against the government itself.

It is in this same manner that the right to distribute water was granted by the State via utility franchises to Maynilad and Manila Water, under express statutory regulation through its delegated representative, the MWSS. The State conferred the franchise to these concessionaires, working under the finn belief that they shall serve as protectors of the public interest and the citizenry. In this regard, water rights must be secured to achieve optimal use of water resources, its conservation, and its preservation for allocative efficiency.”

I will discuss the implications of these statements in the next installment of this series.

Visit this website to access the article.

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