NARRATIVE REPORT/ MINUITES OF THE SEMINAR-WORKSHOP ON ENVIRONMENTAL LAW ENFORCEMENT HELD AT BAYVIEW PARK HOTEL, MANILA CITY ON FEBRUARY 14-17, 2012

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1 NARRATIVE REPORT/ MINUITES OF THE SEMINAR-WORKSHOP ON ENVIRONMENTAL LAW ENFORCEMENT HELD AT BAYVIEW PARK HOTEL, MANILA CITY ON FEBRUARY 14-17, 2012 The Seminar-Workshop on Environmental Law Enforcement was designed to equip with dexterity the EMB Directors and technical personnel in handling cases relative to the implementation and enforcement of environmental laws. Day 1. The seminar proper started with a popular praise song followed by the singing of the national anthem. A heart-warming welcome remarks was delivered by Atty. Juan Miguel Cuna the EMB Central Office Director. In his message Dir. Cuna stressed that the DENR has always been on top of the line in the implementation of environmental laws and we have not run short of our Education and information campaign but we lack the legal assistance in the implementation esp. in the provinces/regions. USEC Adobo whose message was delivered by his staff Engr. Roberto Aguda, remarkably declared that we have sufficient laws to effectively implement our mandates, yet we still experience environmental degradation. Environmental abusers are laughing at our back, he said. We are yet to reach the point where DENR cracks down environmental abusers. Cases have been filed but due to technicalities encountered some DENR officials are discouragingly counter charged and are made to spend for legal assistance from their own pockets After the recognition of the participants, Dir. Roberto D. Sheen stated the objectives of the seminar. On the first day the participants were divided into four (4) groups for proper recognition of identical issues. Regrouping were as follows: Group 1. CAR, Regions 1-3- Luzon A Group II. NCR, Region IV A & B and Region 5- Southern Luzon Group III.Regions 6-8- Visayas Goup IV Regions 9-13 & ARMM Mindanao

2 Upon instruction of Atty. Ronely Sheen one of the trainors, the groups used metacards to write their expectations on the training content, process to be used, the resource speakers/facilitators and to their co-participants. Output of participants was processed by Atty. Ronely Sheen. In the second activity during the morning session, the four groups were requested to make as assessment on the State of Philippine Environmental Law Enforcement. The groups presented their outputs. In the afternoon, the groups identified some problem areas in the enforcement of EEIS,RA 9003, RA 8749, RA 1586, RA 6969 and RA9275. For every problem areas identified, the groups also stated the initial Action Taken by their regions Issues/ Comments Raised: Issues and Concern Raised by Resolutions Comments Day 1. Law enforcement is Group IV/ not enough there is a Mindanao Group need to review existing policies in the implementation of laws Tire pyrolysis Central and Northern Luzon Grp Legal basis for ERF as operating funds shld be established Luzon A grp Central Office shld help us in the legal case for tire pyrolysis. The proponent filed civil case for damages in RTC -Grounds for Luzon A grp issuance of CDO- -no definition of grave Luzon A. Grp and irreparable damage -small and medium enterprises can not afford penalty of P10, (example: rice mill) Chevalier Case Luzon A.-EMB- The wastes It was a result of good

3 NCR were already coordination between treated and two regions. disposed off in a landfill Notice to sue Visayas Grp AD Gonzales: Policies that would address policies with gaps in implementation for example, Issue on Notice to Sue, have apprehensions, no regional officers of DENR would do this for reason that it will create negative reactions from Local Government Enforcers. We ll try to let the commission work on this aspects. We ll stay during the workshop so we can identify policies that need to be address at EMB, may draft guidelines but we need a lot of legal help- for example, funds, admin istrative matters, we ll work on it in succeeding ManCons. 200meters distance of R m distance shld be landfills from private counted from the areas perimeter of the bufferzone owned by a private owner ECC on landfill-shld we count the buffer zone R-10 Laws shld be liberally construed, enforcement is difficult AD Gonzales- on prescriptions, guidelines and limitations- really very general, not absolute, no ideal location, we ll always be constrained by something else- but can be implemented by appropriate design,

4 ordinances (mitigating measures) operational design Sanitary Landfill: Brgy. Constructed a school building proximate to the landfill, now the school and residents want to remove landfill Mindanao Grp AD Gonzales: Sanitary landfill with the correct design and operation is safe; you can still have the option to close landfill but explore possibilities that it is not a threat Wastes allegedly residual, damped in Region 1 by hauler of waste contractor of the city of Baguio Region 1, RD Joel Salvador AD Gonzales: For solid wastes it is not only RA 9003 that can be applied, you can use other laws like CWA, EIA On RA 9003 If work of EMB is only secretariat, who will check others. Power was not given to DILG Mindanao Grp AD Gonzales: EMB is the Secretariat, Ecology Center has specified functions, and the DENR including EMB- but does it provide the full powers of enforcement- or does it require confirmation by the Commission? I d say it has to be submitted to the commission for affirmation.board is recommendatory body, only Congress directly conferred DENR the power to enforce the

5 Actual enforcement of RA 9003 Day 2. EMB issues ECC but MGB issues mining permit, who has the primary jurisdiction on mining MGB has jurisdiction in mining EMB on ECC: MOU was entered bet MGB and EMB on penalties, can we also DC Mindanao from Atty from Mindanao Grp Atty Rose of EMB-NCR DC Mindanao Legal Mindanao Visayas from from LuZON A.-RD Allan Eleuterio Lecturer: Authority to construct or to close, EMB has a designated national solid waste management focal personissuances are drafted by the EMB, signed by the RED being the alter ego of the Secretary EPEP pertains only to funds not to environmental management entire law. Atty. Rose: by virtue of EO 192 (1997), EMB has become a line bureau has employed its own personnel so EMB shall enforce RA 9003 RA 9003 of 2005 was not yet crafted when EO 192 (1997) was issued BUT WAS there an issue that in 2005 EMB is a secretariat on solid waste management. I think the principle of delegated authority applies. But there is no clear delegation of authority There is an implied authority because we are already exercising the authority. Depends on the situation on the imminent dangerif to invoke CWA-EMB has primary jurisdiction to implement

6 use MOU for EPEP Medical wastes being left because waste was not treated, is there a case Luzon B grp You have to show the evidence. Substantial evidence if case is administrative, preponderance if civil, beyond reasonable doubt if criminal Necessity of PAB resolution before filing a criminal case Writ of kalikasan: Affects two or more provinces or cities, what if it is only one municipality Day 3. Luzon B Grp PAB resolution is not needed, law already confers authority to EMB Regions have the authority to determine the violation but still have to inform PAB since only PAB can issue resolution to file a criminal case -special civil action - Conduct of Arrest Seizure and detention Abandoned chemicals in Caloocan City alleged to be hazardous. Question on custodial authority RD NCR Sheen-EMB- Procedural Processes has to be undertaken. To draft a list would entail another time and another forum. Paramount issue is the security of the enforcement officer, not only legal Can we be provided with a checklist of protocol on custodial authority Atty. Ronely Sheen of Tanggol- With due respect to RD Sheen, List of Protocol can not be done overnight.

7 Day 2. Topic: Enforcement options under the EEIS with mining act in relation to EEIS Day 2 AM Session 1 st Lecture: Enforcement Options under the EIA with the Mining Act in relation to the EIA (Atty Genee) 2nd Lecture: Enforcement Options under the Clean Water Act (Atty Lolly) - difference between law enforcement and implementation - law enforcement: penal sanctions, elements of the law, prohibited acts Take note of liabilities and options all the elements of the offense are present - you compel compliance or you impose the fine Lecturer: clean air act and clean water act there is criminal liability when there is gross violation (defn: gross violation shall mean any of the following: 3 cases- 1) deliberate discharge of toxic pollutants under RA 6969 in toxic amounts; 2) toxic amount defined under CWA -- Regions have authority only to determine the violation, but still have to inform the PAB since only PAB can issue resolution to file a criminal case - but region can file necessary complaint for PAB to take action Enforcement Options on the Clean Air Act (Atty Genee) - annual national air status report - integrated air quality framework air quality control action plan designation of non-attainment areas, airsheds - air pollution techniques - air pollution emission fees, - DOST coordination - issue permits and emission quotas, emission standards - institute administrative action - only 3 prohibited acts: Violation of Standards, Violation of Standards for Motor Vehicles (DOTC) Enforcement of the Marine Pollution Decree (Glenn Forbes) - oil spill primary responsibility of Coast Guard

8 Lecturer- In Marine Pollution only willful violations are penalized accidents are not covered. Environmental Rules of Court - designation of 117 environmental courts (hears all cases involving environmmental cases) SC Admin Circular promulgation by SC of the Rules of Procedure for Environmental Cases (2009 effectivity) - objectives of the rules - mandates: forest and protected areas, special civil cases, criminal cases - precautionary principle consider implication in health and environment - courts to monitor environmental cases - salient features: - liberalized standing - any real party-in-interest- govt, juridical entities, individuals (duly registered) may file a case - citizen s suit - payment of docket fees is deferred for citizen s suit - allowed pleadings only (delaying tactics removed) - continuous trial (not to exceed 3 mos), direct examination and deposition - judicial affidavit no examination required (affidavit serves as the testimony), but subject to cross exam, re-direct, re-cross - one year to decide the case Writ of Kalikasan - special civil action - constitutional right to the environment is threatened by an unlawful act or violation (and other criteria) - affects two or more provinces or cities pano kung municipality? Pupuwede pa din? Writ of Kalikasan with prayer for issuance of TEPO (Baguio City) - Boracay: barangay Criminal Procedure - Complaint-affidavit - sworn written statement in question and answer form, charging a person with an offense, subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the environmental law violated - peace officers can file case - creation of defense fund where enforcers get financial support in case of suit cases Day 3. Topic 1. How to Conduct Arrest, Search, Seizure and Detention (Glenn Forbes)

9 - as soon as apprehension isconducted and the elements of the crime are present, then a case can be filed - be strict in gathering the necessary documents and follow criminal procedures - establish basis for criminal procedure: without neglecting rights of the accused - Purpose of the provision All searches and seizures are unreasonable unless authorized by a judge through a warrant of arrest or search - Arrest taking into custody of a person in order that he may be bound to answer for the commission of an offense. - general procedure: 1) by actual restraint; 2) by submission to the custody of the person making the arrest no violence or unnecessary force shall be used (warning shots prohibited); - method of arrest 1) by virtue of a warrant; 2) without a warrant (inform the person of his authority to make the arrest) and in no way shld the Miranda Doctrine be ignored. - warrantless arrests: 1) when in the presence of the person making the arrest, the person to be arrested - who may make the arrest? - police officers - deputized individuals - private persons - NBI - bailor - sheriff/deputy sheriff - provincial/city probation officer - commissioner of LTO and his deputies Duties of the arresting officer - Bail in environmental cases - peculiar in environmental cases: signing a written undertaking: promise to appear in court, if accused does not appear in court, allows court to enter a plea of not guilty on behalf of the accused and set the case for trial =trial in absentia - removes the delay brought about by absence of the accused Searches The total exclusionary rule Items that may be confiscated or seized What to do with confiscated items - conduct an inventory - take photographs of the items (with evidence tags)

10 - issue receipt of inventoried items - give copy of the inventory to the accused - turn over to proper authority - get turn-over receipt Custody and Disposition - in accordance with internal rules and regulation of concerned government agency - if no internal rules - take photograph/document the items - submit same to issuing court (where warrant was issued) - submit same to prosecutor (if warrantless) - move for auction of seized items, equipment and paraphernalia, tools or instruments of the crime - proceeds to be held in trust Topic 2. Evidence Gathering & Rules on Evidence (Atty Arnie Rabe-Manuel) Kinds of evidence -object -documentary - testimonial Documentary Evidence - Best evidence rule Testimonial Evidence

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