Writ of Kalikasan

WRIT OF KALIKASANWhat are the bases for issuing writ of kalikasan?  1987 Constitution Who can file a petition for Writ of Kalikasan? (PVU EP)  o o  Article 2 Sec. 16, “The state shall advance the Natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency on behalf of 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. right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature” Article 2 Sec. 15, “The state shall protect and promote the right to health of the people and instill health consciousness among them.” Environmental Justice Inter-generational Responsibility (Oposa v. Factoran)     What are the main issues considered by the Supreme Court Why is there a need for accreditation of a group or organization? Committee which affects the prosecution of environmental The requirement of accreditation of a group or organization is for cases? the purpose of verifying its existence. The accreditation is a  whether to relax the rule on "locus standi” to encourage more mechanism to prevent “fly by night” groups from abusing the writ. citizens to file suits involving violations of the country's environmental laws; What are the contents of a petition for Writ of Kalikasan?  the delay in the disposition of pending environmental cases;  Personal circumstances of the petitioner; and  Name and personal circumstances of the respondent, or if  the problem of procuring evidence and crafting effective name is unknown or uncertain, an appellation for him; remedies.  The environmental law violated;  The act or omission complained of; What are the objectives of Writ of Kalikasan?  The environmental damage of such magnitude as to  For protection and promotion of constitutional right to a prejudice the health, life or property of inhabitants in two or balanced and healthful ecology; more cities or provinces;  For simplified, speedy and inexpensive procedure in the  All relevant or material evidence; enforcement of environmental rights and duties;  Certification of petitioner under oath that:  To introduce and adopt innovations in ensuring the effective  He has not commenced any action involving the same issue; enforcement of remedies and redress for violation of  If there is a pending action, the present status thereof; environmental laws; and  If he should learn that the same claim has been filed or is  To enable the courts to monitor and exact compliance with pending, he should report such fact within 5 days from orders and judgments in environmental cases. knowledge thereof to the court;  The reliefs prayed for. What are some features of the Writ of Kalikasan? First of its kind in the WORLD. Where is it filed? Special Civil Action With the Supreme Court or with any station of the Court of Rule 7 of A.M. No. 09-6-8-SC: Rules of Procedure for Appeals Environmental Cases (Effective April 29, 2010)  A remedial measure that may be granted by the courts upon Why is the petition filed in the Supreme Court or the Court of the request of a person or a group whose constitutional right Appeals? to a healthy environment is violated  The magnitude of the environmental damage is the reason for limiting where the writ may be filed, to the Supreme Court What is the nature of a writ of kalikasan? or Court of Appeals whose jurisdiction is national in scope. It is an extraordinary remedy with the underlying emphasis on the magnitude as it deals with damage that transcends political and How much is the docket fee? territorial boundaries. The petitioner is EXEMPT from paying docket fees    How is magnitude measure? What is the rationale of the exemption from the payment of Magnitude is measured according to the qualification set forth in docket fees? the Rule – when there is environmental damage that prejudices The exemption from payment of docket fees is consistent with the the life, liberty or property of inhabitants in two or more cities or character of the reliefs available under the writ, which excludes provinces. damages for personal injuries. This exemption also encourages public participation in availing of the remedy. Give several instances wherein the SC issued Writ of Kalikasan.  Protected Area Mgt. Board to refrain from issuing How is the writ issued? clearances for fish cage operations in Taal Lake; Within 3 days from the filing of the petition, if the petition is  government to answer a petition seeking to stop sufficient in form and substance, the court shall order: mining operations in the Zamboanga Peninsula;  Issuing the writ;  Placer Dome and Barric Gold to clean up the toxic  Requiring the respondent to file a verified return. waste that spilled into the Boac River in Marinduque in 1996; The Clerk of Court shall issue the writ.  Baguio City government to cease and desist from using the Irisan dump facility either as a holding or staging How is the writ served? area or as controlled area for all kinds of solid wastes; It is served personally or by substituted service by the court  Rehabilitating the Manila Bay by cleaning-up the river officer or any person deputized by the court, who shall retain a veins connected to the bay; and copy on which to make the return of service.  Stopping FPIC from operating the 117-kilometer Batangas-to-Manila oil pipeline after it leaked sometime in What if the court officers refuse to issue or serve the writ? 2010. They will be punished with contempt without prejudice to other administrative, civil, or criminal action. The discovery measures available include “ocular inspection” and “production or inspection of documents or things.” How can the discovery measures be availed of? When should the respondent file a verified return? The discovery measures may be availed of by the filing of a Within a non-extendible period of ten (10) days after service of verified motion. the writ. Who can avail of the discovery measures? The discovery measures are available to a party in the case. What are the contents of the return?  All defenses to show that respondent did not violate or What should be alleged in the motion for an “ocular inspection?” threaten to violate, or allow the violation of any  The motion must show that an ocular inspection order is environmental law, rule or regulation or commit any act necessary to establish the magnitude of the violation or the resulting to environmental damage of such magnitude threat as to prejudice the life, health or property of as to prejudice the life, health or property of inhabitants inhabitants in two or more cities or provinces. in two or more cities or provinces.  It shall state in detail the place or places to be inspected.  Affidavits of witnesses  It shall be supported by affidavits of witnesses having  documentary evidence personal knowledge of the violation or threatened violation of environmental law.  scientific or other expert studies  object evidence, if possible What are the contents of the “ocular inspection order?” After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the What is the effect of a general denial? date, time, place and manner of making the inspection and may A general denial of allegations in the petition shall be considered prescribe other conditions to protect the constitutional rights of all as an admission thereof. parties. What is the effect if respondent will not raise all his defenses in the return? All defenses not raised in the return shall be deemed waived. What are the prohibited pleadings and motions?  Motion to dismiss;  Motion for extension of time to file return;  Motion for postponement;  Motion for a bill of particulars;  Counterclaim or cross-claim;  Third-party complaint;  Reply; and  Motion to declare respondent in default. What is the purpose of providing for prohibited pleadings and motions? The purpose of prohibiting certain pleadings and motions is to expedite the hearing of the petition. Is a motion for intervention prohibited? NO. A motion for intervention is excluded from the enumeration. Allowing this motion is a reaffirmation of the public participation aspect of the writ of kalikasan since there may be a large, qualified pool of possible representatives interested in availing of the remedy. What is the effect for failure to file a return? The court shall proceed to hear the petition ex parte What should be alleged in the motion for “production or inspection of documents or things?” The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. What are the contents of the “production or inspection order of documents or things?” After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties. What are the matters taken up in a preliminary conference?  Simplification of issues  determination of the possibility of obtaining stipulations or Who may be punished for indirect contempt? admissions from the parties; The court may after hearing punish the respondent who refuses  setting up the petition for hearing or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or What is the duration of the preliminary conference and hearing? order of the court for indirect contempt under Rule 71 of the The hearing and preliminary conference shall not extend beyond Rules of Court. sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data. What are the contents of the order of the court submitting the case for decision? What is the nature of the hearing? The court may require the filing of memoranda and if possible, in The environmental damage subject of the writ may involve issues its electronic form, within a non-extendible period of 30 days from that are of a complex character, and for this reason, the hearing is the date the petition is submitted for decision. not summary. The abbreviated time frame required, however, insures that the proceedings are expedited What is the purpose of requiring the filing of memoranda in electronic form? What are the discovery measures available? What are the limits on the issuance of the discovery measures? Considering that these measures are invasive, the court may prescribe conditions in any order granting such measures to safeguard constitutional rights. The court’s discretion in requiring the filing of memoranda in electronic form if possible is for the purpose of expediting the proceedings. What is the procedure in rendering judgment?  Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan. After hearing, the court shall issue an order submitting the case for decision. ◦ The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision. Yes. The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.  What are the reliefs that may be granted under the writ of WRIT OF CONTINUING MANDAMUS kalikasan?  Directing respondent to permanently cease and desist from What is the writ of continuing mandamus? Continuing mandamus is a writ issued in an environmental case committing acts or neglecting the performance of a duty in directing any agency or instrumentality of the government or violation of environmental laws resulting in environmental officer thereof to perform an act or series of acts decreed by final destruction or damage; judgment which shall remain effective until judgment is dully  Directing the respondent public official, government agency, satisfied. private person or entity to protect, preserve, rehabilitate or restore the environment;  Directing the respondent public official, government agency, What are the grounds for the issuance of the writ of continuing private person or entity to monitor strict compliance with the mandamus? decision and orders of the court;  When any agency or instrumentality of the government or  Directing the respondent public official, government agency, officer thereof unlawfully neglects the performance of an act or private person or entity to make periodic reports on the which the law specifically enjoins as a duty resulting from an execution of the final judgment; and office, trust or station in connection with the enforcement or  Such other reliefs which relate to the right of the people to a violation of an environmental law rule or regulation or a right balanced and healthful ecology or to the protection, therein. preservation, rehabilitation or restoration of the environment,  When any agency or instrumentality unlawfully excludes except the award of damages to individual petitioners. another from the use or enjoyment of such right. Are the reliefs available exclusive? Where should the petition be filed? The reliefs that may be granted under the writ are broad, The petition shall be filed with the Regional Trial Court exercising comprehensive and non-exclusive. The reliefs regarding jurisdiction over the territory where the actionable neglect or monitoring and periodic reports ensure enforcement of the omission occurred or with the Court of Appeals or the Supreme judgment of the court. Court. What is the remedy in case an adverse judgment was rendered? What are some characteristics of the procedure for the issuance The remedy is to appeal to the Supreme Court under Rule 45 of of the writ of continuing mandamus? the Rules of Court within fifteen (15) days from the date of notice  The petitioner shall be exempt from the payment of docket of the adverse judgment or denial of motion for reconsideration. fees. The appeal may raise questions of fact.  Proceedings shall be summary in nature Can a question of fact be raised on appeal?  Orders expediting the proceedings or a Temporary Given the extraordinary nature of circumstances surrounding the Environmental Protection Order for protection of the rights of issuance of a writ of kalikasan, this section allows an appeal to the parties may be granted by the court. raise questions of fact and thus constitutes an exception to Rule  The petition shall be resolved without delay within sixty (60) 45 of the Rules of Court. days from the date of the submission of the petition for resolution. May a party institute separate actions? Summary and Comparative Table Writ of Kalikasan Subje ct Matt er A Writ of Kalikasan is available against 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. In addition, magnitude of environmental damage is a condition sine qua non in a petition for the issuance of a Writ of Writ of Continuing Mandamus A Writ of Continuing Mandamus is directed against (a) the unlawful neglect in 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 (b) the unlawfully exclusion of another from the use or enjoyment of such right and in both instances, Kalikasan and must be contained in the verified petition. Who may file A petition for the issuance of a Writ of Kalikasan is available to a broad range of persons such as natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose right to a balanced and healthful ecology is violated or threatened to there is no other plain, speedy and adequate remedy in the ordinary course of law. A Writ of Continuing Mandamus is available only to one who is personally aggrieved by the unlawful act or omission. be violated. Resp onde nt Dock et Fees A petition for the issuance of a Writ of Continuing Mandamus may be filed in the following: (a) the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred; (b) the Court of Appeals; or (c) the Supreme Court. The respondent may be a private individual or entity. The respondent in a petition for continuing mandamus is only the government or its officers Discov ery Measur e Exempted Exempted Venu e Given the magnitude of the damage, the application for the issuance of a Writ of Kalikasan can only be filed in Supreme Court or any of the stations of the Court of Appeals. Damag es for perso nal injury The Rule on the Writ of Kalikasan incorporates the procedural environmental right of access to information through the use of discovery measures such as ocular inspection order and production order. No damages may be awarded in a petition for the issuance of a Writ of Kalikasan consistent with the public-interest character of the petition. A party who avails of this petition but who also wishes to be indemnified for injuries suffered may file another suit for the recovery of damages since the Rule on the Writ of Kalikasan allows for the institution of separate actions. The Rule on the Writ of Continuing Mandamus does not contain any provision for discovery measures The Writ of Continuing Mandamus allows damages for the malicious neglect of the performance of the legal duty of the respondent, identical to Rule 65, Rules of Court. Sources: A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases Annotation to the Rules of Procedure for Environmental Cases http://www.scribd.com/doc/84320250/Writ-of-Kalikasan by Ms. Cheryl Daytec-Yangot http://www.abs-cbnnews.com/nation/01/31/10/sc-rushespromulgation-rules-writ-kalikasan http://www.manilatimes.net/index.php/opinion/columnist1/17649we-need-a-law-on-environmental-remediation