The_role_of_Philippine_courts_in_establishing_the_environmental_rule_of_law

The Role of Philippine Courts in Establishing the Environmental Rule of Law

Elizabeth Barrett Ristroph

819 Dafney Dr., Lafayette, LA 70503, U.S.A.

ebristroph@gmail.com ▪ 011-63-906-544-3734 or 011-632-519-6199

Abstract

In 2010, the Supreme Court led the Philippines to become the first nation with rules of procedure specific to environmental cases. This article examines environmental cases before and after the implementation of the rules, proposing a definition for the “environmental rule of law” and analyzing how the Court has contributed to it. While the Philippines has made great strides in adopting environmental laws and providing access to courts, more work is needed to ensure consistent decisions and to build capacity in both lower courts and government agencies. As shown in the case of Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, the Court will need to find a balance between making environmental laws a reality and taking on more than it can (and should) handle.

Acknowledgement

Many thanks to my Filipino colleagues who generously shared their time and knowledge of Philippine law with me, including Professor Gloria (Golly) Estenzo Ramos of the University of Cebu College of Law and the Philippine Earth Justice Center, Attorney in Dolphins v. Reyes; Antonio (Tony) G.M. La Viña, Dean of the Ateneo School of Government, Former Department of Environment and Natural Resources Undersecretary, Member of the Manila Bay Advisory Committee, Chair of the Technical Working Group that drafted the 2010 Rules of Procedure for Environmental Cases for the Supreme Court’s review; Asis Perez, Director of the Bureau of Fish and Aquatic Resources, Department of Agriculture, Member of the Supreme Court committee responsible for the Environmental Rules; Jose F. Leroy Garcia, Consultant, School of Government, Ateneo de Manila University and Former Department of Environment and Natural Resources counsel; Professor Harry Roque of the University of Philippines College of Law and the Center for International Law, Attorney in Makati v. Meralco; and Reynato Lopez, Jr., Philippines Deputy Director for the American Bar Association Rule of Law Initiative.

Author Information

Elizabeth Barrett Ristroph served as a legal specialist in the Manila office of the American Bar Association Rule of Law Initiative (ABA ROLI) in 2011 and 2012. This article was written outside of Ristroph’s work for ABA ROLI and does not necessarily reflect the views of ABA ROLI or its sponsors.

Table of Contents

I. Introduction

Fifty years ago, there was little “environmental rule of law” in the United States. It was a time when a community could be built on top of a toxic waste dump (Love Canal), and a river, oozing with oil slicks, could catch on fire (the Cuyahoga River). The legal landscape began to change in the late 1960s and early 1970s with the enactment of watershed laws like the National Environmental Protection Act (NEPA), the Clean Air Act, and the Clean Water Act. But these aspirational laws were not enough to clean up the environment. Federal courts were instrumental in making NEPA and other laws a reality. Newly established environmental agencies likewise played an important role in carrying out the laws.

In developing countries that have enacted environmental laws similar to those in the U.S., it is apparent that legislative action alone is not enough. Environmentalists around the world have hailed judicial efforts such as those of the Indian Supreme Court to implement environmental laws in the face of executive apathy or inability. At the same time, this judicial activism raises questions as to whether courts are intruding into the arena of executive agencies.

This article explores the role that the Philippine Supreme Court has played in establishing the environmental rule of law, along with the significance of the Philippines’ 2010 Rules of Procedure for Environmental Cases (hereinafter “the Environmental Rules”). But first, it lays out the concept of the environmental rule of law and examines how courts in other jurisdictions have helped implement environmental law. It also discusses aspects of the Philippine legal system relevant to the environmental rule of law, including stare decisis, administrative jurisdiction, and standing. Finally, it considers the use of the writ of continuing mandamus in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay and the prospects for an environmental rule of law in the Philippines.

The article is based on my review of Philippine and American law review articles, Philippine newspapers, published Supreme Court cases, and interviews with Filipino environmental lawyers. The lawyers’ knowledge was essential, since there is no centralized electronic system in the Philippines for publishing and Shepardizing cases.

II. Defining the Environmental Rule of Law

The “rule of law” is a vague concept. Some definitions focus on the elements believed to be necessary to accomplish the rule of law, such as comprehensive laws, well-functioning courts, and trained law enforcement agencies. Others focus on the goals of the rule of law, including a government bound by law, equality before the law, public order, predictable and efficient rulings, and human rights.…