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1

Why is environmental law so difficult?

1. Scarcity
- conflict in use; nature of scarcity depends on the type of resources

2. Clash of values among competing interests

3. Biocentrism

4. Anthropocentrism

5. Intergenerational equity

2

Type of Resource

1. Extractive
a. Non renewable - coal, oil, copper (limited availability)
b. Renewable - fish, timber, soil, groundwater (rate of extraction must not threaten renewability)

2. Ecosystem services (not extracted or harvested but no value in the commercial market and hence, ignored)
- pollination, water purification, flood control, climate stability

3. Aesthetic/Spiritual (congestion)
- scenic vistas, Mt. Mayon

(Nature of Scarcity)

3

Challenges on each type of resource

1. Extractive, non renewable: HOW TO ALLOCATE
2. Extractive, renewable: HOW TO LIMIT EXTRACTION, ENSURE SUSTAINABILITY
3. Ecosystem services: HOW TO VALUE
4. Aesthetic/Spiritual: HOW TO REGULATE ACCESS EQUITABLY

4

Problem of the Commons/Tragedy of the Commons

1968 by Garrett Hardin
Ex: grazing in public land

One cow uses a particular area of land for grass consumption. More and more come because ooh resources. Pag dumami lahat and nakitang shet nauubos na resources. One would think need nya imaximize use nya kasi if hindi, imamaximize ng iba ang mauubusan sya and his sacrifice will mean nothing and he will end up losing more. Eh kung mag-agree naman sila na ilimit yung use, pano sila nakakasigurado na walang ibang outsider na mananamantala nung area?

In this situation, what would appear to be the logical thing to do for the individual would be illogical from the collective's point of view. Yet this would be the normal course of each individual.

5

The difficulty of collective action and free riders

- collective
- who? how?
- transaction costs

6

Some basic themes of environmental law

1. Scientific uncertainty
- we will never fully understand and control nature
- choices remain vague because there is uncertainty
- 2 basic strategies to address this problem: a) develop better information; b) precautionary principle

2. Market failures
- happens when the price mechanism fails to allocate scarce resources efficiently or when the operation of market forces lead to a net social welfare loss
- environmental problems are modeled as market failures using either of the following theories: a) public goods b) externalities

3. Mismatched scales
- political and economic scales do not match the scales of environmental action
- political boundaries define who will spend but the benefits would accrue to even those beyond those boundaries
- same is true with time; generation spending will not be the only one to be benefitted

4. Cognitive Biases
- we will never run out of fishes
- God will always provide (overpopulation is not a problem)
- only a dew people believe that they are to blame for environmental problems

5. Protected interests
- environmental protection inevitably causes a clash of competing interests
- unfortunately not all involved in the conflict have someone to protect it
- who will protect the interests of wildlife or parks?
- Who will protect interests of future generations?

7

Regulatory Tools in Environmental Law
6Ps

1. Property Rights
2. Prescriptive Regulation (Command and Control)
3. Property Rights and Prescriptive Regulation Hybrid
4. Permits Trading
5. Penalties (Internalizing Externalities)
6. Payments
7. Public Disclosure and Persuasion

8

Explain property rights as regulatory tool

Approach: take away public access to the resources and privatize it or create ownership rights

Premise: people will take better care of their private property

Applied to problem of the commons:
Use will be limited to the owners.
Can be used in regulating fishing >> limited people to exercise fishing rights >> fishermen will not be pressured into getting as much as they can >> overfishing can be prevented by pre-determined fishing quotas

Challenges:
How to allocate the resources? Who gets what, and why?
How to exclude others from common resource?
What to do when efficiency conflicts with social goals?

9

Explain prescriptive regulation (command and control) as regulatory tool

Approach: Regulators direct behavior of regulated party

Premise: Regulators know best, has the most accurate information, will not give in to pressure groups or politics and has the monitoring and enforcement capacity

Applied to the problem of the commons:
Regulators determine, based on available science the carrying capacity of the land
All grazers are then required to abide by the grazing limit and other rules
All those who violate prohibition will be punished

Challenges:
Premises not true in the Philippines
Regulators do not know best; have no information
Regulators subject to pressures, political or otherwise
No monitoring and enforcement capacity
Provides no incentive for going beyond the limits they set
They offer limited flexibility on where and how to reduce pollution
They often have politically-motivated loopholes

10

Explain property rights and prescriptive regulation hybrid as regulatory tool

Permits trading

Approach: Create property rights, prescribe regulations, create market
- maximum emissions per installation set
- owners of emission permits can trade
- the ownership of rights and the privilege to trade gives the incentives to develop new techology

11

Explain penalties (internalizing externalities) as regulatory tool

Approach: Makes the polluters/destroyers absorb the environmental costs

Premise: If actual costs to the environment are passed on to those who will degrade it, they will avoid degrading the environment

As applied to the commons:
Each grazer will be taxed equivalent to his/her share in the cost of damage to the environment
They may graze as much as they want but they will have to pay the taxes

Challenges:
Calculating costs to the environment (value of ecosystem services)
Mismatched scales and the resulting "race to the bottom"
Enforcement and monitoring capacity

12

Explain payments as regulatory tool

Approach: Pay/reward environmentally friendly behavior

Premise: If environmentally friendly practices are rewarded in an amount more than an individual can earn from overusing the resources, environmentally friendly behavior can be shaped

As applied to the commons:
Grazers who limit their animals to a definite number will get government subsidies
As a result, there will be more incentive not to overuse the grazing field as revenues will be "guaranteed"

May also be applied to air pollution:
Government subsidizes those who do not use coal fired power or those who use electric cars

Challenges:
Where would the government source the funds to subsidize particular groups?
Possible conflict with socio-economic objectives
How to choose which activities to subsidize and once chosen, how to prioritize?

13

Explain public disclosure and persuasion as regulatory tool

Approach: Make the public themselves choose to be environmentally friendly by educating them and giving them direct access to relevant information

Premise: An educated and informed citizenry will decide to do what is best

As applied to the commons:
All grazers/shepherds will be required to report the number of sheep they bring
Those who "abuse" the commons will be known to everyone, based on the info
With an educated public informed of "abusers," consumers will reject products of the abusers

Challenges:
Economic needs/social pressure may outweigh "intelligent choices" in day to day decision-making
Monitoring labels and information that may mislead the public
Scientific uncertainty

14

Seeds of Environmental Degradation

1. Philippines itself
- megadiversity country
- extensive water resources
- coral triangle
- pacific ring of fire

2. Dependence on Natural Resource Extraction

3. Early History
- Communities were led by Datus but resources were collectively owned

4. Spanish Arrival
- Encomienda system was established

5. American Period
- cultivated and spotted class of former village chiefs under the Spanish regime

6. Independence
- the elite classes who owned land and were strengthened

7. Martial Law
- one faction of the elite class emerged
- control over resources was further monopolized

8. Post-EDSA Revolution
- did very little to address the centuries old highly inequitable distribution of wealth between the rich and the poor

15

Development at the expense of the environment

1. The elite has always emphasized agricultural intensification
- over-utilization of agricultural lands
- soil degradation

2. Export led industrialization energy
- creation of special economic zones
- conversion of prime agricultural lands

The Philippines a biodiversity hotspot
The problem of solid waste disposal
Fresh water availability
Air pollution
Coral reefs
Mangroves

16

Philippine Environmental Impact Statement System

Main Objective: to require every project proponent to take the environment into consideration in the implementation of its project in order to provide adequate protection to the environment or at least minimize the project's potential negative impacts

PD 1151 passed in 1979 - required all agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms, and entities, to prepare, file and include an Environmental Impact Statement (EIS) in every action, project or undertaking which significantly affects the quality of the environment.

PD 1586 established the EIS System, which provided a systems-oriented and integrated approach to the filing of the EIS in coordination with the whole environmental protection program of the State.

17

US National Environmental Policy Act of 1969

Sec. 102 (2)(c) of NEPA provided that an environmental impact statement (EIS) is to include: in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on:

i. the environmental impact of the proposed action
ii. any adverse environmental effects which cannot be avoided should the proposal be implemented
iii. alternatives to the proposed action
iv. the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
v. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented

18

What are included in the PEISS

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

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

19

Calvert Cliffs Coordinating Committee vs. US Atomic Energy Commission

Policy: use all practicable means and measures to protect environmental values

Environmental protection was not the exclusive goal >> reordering of priorities so that environmental costs and benefits will assume their proper place along with other considerations

agencies must use a "systematic, interdisciplinary approach" to environmental planning and evaluation "in decision making which may have an impact on man's environment"

20

Environmental amenities will often be in conflict with ________________

economic and technical considerations

To consider the former along with the latter must involve a balancing process.

NEPA mandates a systematic balancing analysis.

21

Balancing analysis

responsible officials of all agencies shall prepare a detailed statement covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation

Purpose: to aid in the agencies' own decision making process and to advise other interested agencies and the public of the environmental consequences of planned federal action.

all agencies must study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources

Purpose: to see all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance

22

Baltimore G & E Co. v. NRDC

Twin aims of NEPA

Zero release assumption

Not duty of the court to determine whether the right decision was arrived at but rather WON the agency complied with NEPA

23

Twin aims of NEPA

1. it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action

2. it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process

24

Strycker's Bay Neighborhood Council v. Karlen

NEPA imposes upon agencies duties that are essentially procedural.

25

Environmental Impact Assessment Process

The process of identifying and predicting the potential environmental impacts (including bio-physical, socio-economic and cultural) of proposed actions, policies, programs and projects and communicating this information to decision-makers before they make their decisions on the proposed actions.

EIA Process is a proponent-driven process wherein the Proponent applies for an Environmental Compliance Certificate (ECC) by submitting an EIS.

26

Environmental Compliance Certificate

A document issued by the DENR-EMB (Environmental Management Bureau) after a positive review of an ECC application, certifying that the Proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan.

ECC contains a "summary of the information on the type, size and location of the project, environmental impacts, the mitigating measures and environmental management plan for the various government agencies to consider in their decision-making process.

NOT a permit and should not be interpreted as such but rather A SET OF CONDITIONS, which will have to be complied with by the project proponent before implementing the said project.

27

Coverage of the PEISS

Presidential Proclamation No. 2146, Series of 1981, defines undertakings that are either Environmentally Critical Projects (ECPs) or those located in Environmentally Critical Areas (ECAs) was within the scope of the PEISS.

28

Categories to Determine Coverage under the PEISS

1. Category A
- Environmentally Critical Projects (ECP)

2. Category B
- Not classified as ECP under Category A but which are likewise deemed to significantly affect the quality of the environment by virtue of being located in Environmentally Critical Area (ECA)

3. Category C
- Projects/undertakings not falling under Category A or B which are intended to directly enhance the quality of the environment or directly address existing environmental problems

4. Category D
- projects or undertakings that are deemed unlikely to cause significant adverse impact on the quality of the environment.
- not covered by PEISS

29

4 Main Categories of Environmentally Critical Projects

1. Heavy Industries
- Non-ferrous metal industries
- iron and steel mills
- petroleum and petrochemical industries
- smelting plants

2. Resource Extractive Industries
- mining and quarrying industries
- forestry projects
- dikes for/and fishpond development projects

3. Infrastructure Projects
- dams
- powerplants
- reclamation projects
- roads and bridges

4. Golf Course Projects

30

12 Main Categories of Environmentally Critical Areas

1. Areas declared by law as national parks, watershed reserves, wildlife reserves 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, archeological, geological or scientific interests

5. Areas which are traditionally occupied by cultural communities or tribes

6. Areas frequently visited or hard-hit by natural calamities

7. Areas with critical slope (50% or more)

8. Areas classified as prime agricultural lands

9. Recharge areas of aquifers

10. Water bodies

11. Mangrove areas

12. Coral reefs

31

Stages of the EIA Process

1. Screening
2. Scoping
3. EIA Study and Report Preparation
4. EIA Report Review and Evaluation
5. Decision Making and [Monitoring]
6. [Monitoring] Validation and Evaluation/Audit

32

Screening

Determine if a project is covered or not by the PEISS. If a project is covered, screening further determines what document type the proponent should prepare to secure the needed approval, and what the rest of the requirements are.

33

Scoping

A proponent-driven multi-sectoral formal process of determining the focused Terms of Reference of the EIA Study.

Identifies the most significant issues/impacts of a proposed project, and then, delimits the extent of baseline information to those necessary to evaluate and mitigate the impacts.

The need for and scope of an Environmental Risk Assessment is also done during the scoping session.

Done with local community and with a third party EIA Review Committee (EIARC) through Technical Scoping, with the participation of the DENR-EMB.

The process results in a signed Formal Scoping Checklist by the review team, with the final approval by the EMB Chief.

34

EIA Study and Report Preparation

Involves a description of the proposed project and its alternatives, characterization of the project environment, impact identification and prediction, evaluation of impact significance, impact mitigation, formulation of Environmental Management and Monitoring Plan, with the corresponding cost estimates and institutional support commitment.

Study results are presented in an EIA Report for which an outline is prescribed by the EMB for every major document type.

35

EIA Report Review and Evaluation

Review of EIA Reports normally entails an EMB procedural screening for compliance to minimum requirements specified during Scoping, followed by a substantive review of either composed third party experts commissioned by EMB as EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-based applications.

The EMB evaluates the EIARC recommendations and the public's inputs during public consultations/hearings in the process of recommending a decision on the application. The EIARC Chair signs EIARC recommendations including issues outside the mandate of the EMB.

The entire EIA review and evaluation process is summarized in the Review Process Report (RPR) of the EMB, which includes a draft decision document.

36

Decision Making

Involves the evaluation of EIA recommendations and the draft decision document, resulting in the issuance of an ECC, CNC or Denial Letter.

When approved, a covered project is issued an Environmental Compliance Certificate (ECC), while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC).

37

Monitoring, Validation and Evaluation/Audit

Involves the assessment of the performance of the Proponent against the ECC and its commitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are adequately prevented or mitigated.

38

Fines, penalties, and sanctions

Suspension or cancellation of the ECC and/or a fine in an amount not to exceed P50,000 for every violation thereof

39

Bangus Fry Fisherfolk, et. al. v. Hon. Lanzanas et. al

Exhaustion of Administrative Remedies

40

Constitution and the Environment

Art. II, Sec. 2.
The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Art. II, Sec. 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.

41

Doctrine of Incorporation

Art. II, Sec. 2.
The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

42

International Commitments

1. Vienna Convention for the Protection of Ozone Layer

2. Montreal Protocol on the Protection of the Ozone Layer

3. Stockholm Convention on Persistent Organic Pollutants

4. Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal

5. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Use

6. United Nations Conference on Environment and Development (UNCED)
- Philippine Agenda 21 (PA 21)

7. United Nations Framework Convention on Climate Change (UNFCCC)

8. Kyoto Protocol

9. Paris Agreement

43

United Nations Framework Convention on Climate Change (UNFCCC)

In general, the convention discussed the following important points:

a. recognized that there was a problem
b. sets a specific goal
c. puts the onus on developed countries to lead the way
d. directs new funds to climate change activities in developing countries
e. keeps tabs on problems and what's being done about it
f. charts the beginning of a path to strike a delicate balance
g. kicks off formal consideration of adaptation to climate change

44

Kyoto Protocol

Operationalizes the Convention (UNFCCC). It commits industrialized countries to stabilize greenhouse gas emissions based on the principles of the Convention

Sets binding emission reduction targets for 37 industrialized countries and the European community in its first commitment period. Overall, these targets add up to an average five% emissions reduction compared to 1990 levels over the five-year period 2008-2012.

45

Paris Agreement

Nationally determined contributions (NDC)

Officially took effect in the Philippines on April 22, 2017

The goal is 70% emission reduction

46

Right to a balanced and healthful ecology

Art. II, Sec. 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.

47

Oposa v. Factoran

Right to a balanced and healthful ecology is not less important than any of the civil and political rights.

Dapat nga not written anymore sa Consti because they are assumed to exist from the inception of humankind

Locus Standi >> intergenerational responsibility

48

Resident Marine Mammals of the Protected Seascape Tanon Strait v. Sec. Angelo Reyes

Locus standi in environmental cases has been given a more liberalized approach

Procedural rules may be retroactively applied to actions pending and undetermined at the time of their passage

Filipino citizens, as stewards of nature, can bring a suit to enforce our environmental laws.

49

MMDA v. Concerned Residents of Manila Bay

The cleaning or rehabilitation of Manila Bay can be compelled by Mandamus

Writ of mandamus applicable to ministerial duty

50

Ministerial duty

A ministerial duty is one that requires neither the exercise of official discretion nor judgment. It connotes an act in which nothing is left to the discretion of the person executing it. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. Mandamus is available to compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion one way or the other.

51

Apex predator

a predator that exists at the very top of the food chain

Scientists discovered that without wolves present in Yellowstone to hunt and kill prey, the elk population grew so large it ate up all the young willow trees until there were none. This affected the habitat of many other animals and plants in harmful ways and the ecosystem became unbalanced. Or, as science puts it, we caused a harmful “top-down trophic cascade” by removing an apex predator, the wolf, from the food web.

In reporting her article, Marris learned that beyond the pages of scientific journals, the gaps between researchers who do and don’t support the apex predator theory are really fairly narrow. Generally it’s accepted that there is a lot more involved in balancing an ecosystem. “But some still believe carnivores are somewhat special in their top-down effects on the ecosystem,” she says. Wolves generate a lot of emotion as well as attention because they’ve become a bell-weather for the fate of wilderness. “Everywhere wolves exist,” says Marris, “they tell stories about how people and wild things make peace, or don’t make peace, in the 21st century.”

What’s most at risk as we debate the role of wolves in the ecosystem seems to be our hope for a really straightforward story that explains what’s going on around us.

52

The Philippine “Talong”

Bt talong contains the crystal toxin genes from the soil bacterium Bt, which produces the CrylAc protein that is toxic to target insect pests.