Climate Change Litigation in the Philippines - PowerPoint Presentation

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Climate Change Litigation in the Philippines

ATTY. ALDER K. DELLORO, DPA Cand.University of the Philippines Diliman2017 EROPA General Assembly and ConferenceGrand Intercontinental Seoul Parnas, Seoul, Korea

The Role of the Judiciary in Promoting Climate Change Justice

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Climate Justice for a Changing Planet

“Adaptation is becoming a euphemism for social injustice on a global scale. While the citizens of the rich world are protected from harm, the poor, the vulnerable and the hungry are exposed to the harsh reality of climate change in their everyday lives” Archbishop Desmond TutuClimate Justice for a Changing Planet, U.N. (2009)

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Introduction: The Context

Climate Change as a Threat to HumanityGlobal climate change is one of the most pressing threats to humanity in the 21st century. Not only is evidence of this warming unequivocal, scientific consensus holds that it is the result of human activityIf left unchecked, climate change will result in, at best, serious harms to many and, at worst, catastrophic harms to allIn the face of this threat, the international community has failed to agree on a set of norms for addressing the problemSource: Feldt 2012

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Introduction: The Context

CLIMATE CHANGE: The Philippine ExperienceThe country is made up of more than 7,000 islandsThe economy of the Philippines is one of the biggest emerging markets in the world but many remain very poorThe Philippines is an area of intense seismic activity because it is located along the border of two tectonic plates on the “Pacific Ring of Fire” which means it is also prone to earthquakes and volcanic eruptions

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Introduction: The Context

CLIMATE CHANGE: The Philippine ExperienceIt is globally noted that the Philippines, as an archipelagic state, is particularly affected by the expected negative impacts of climate change. According to the Intergovernmental Panel on Climate Change (IPCC), the country belongs to the ten most threatened countries worldwideClimate change will have dramatic consequences for agriculture, fisheries, manufacturing and industriesWater sources and food security will be threatened as the country experiences annual bouts of droughts and floods resulting to loss of lives, livelihood and property. Sea level rise has already been observed in some coastal areas. The most vulnerable to the effects of climate change are those that are most dependent on natural resources, as well as those with the least capacity for adaptationSource: CCC 2015

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Introduction: The Context

Source: S. Kreft, D. Eckstein, L. Junghans, C. Kerestan and U. Hagen (2015) Global Climate Risk Index, Germanwatch

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Introduction: The Context

CLIMATE CHANGE: The Philippines as One of the Most Affected Countries Of the ten most affected countries (1994–2013), nine were developing countries in the low income or lower-middle income country group, while only one was classified as an upper-middle income countryAltogether, more than 530,000 people died as a direct result of approx. 15,000 extreme weather events and losses between 1994 and 2013 amounted to nearly 2.2 trillion USD (in Purchasing Power Parities) In 2013, the Philippines, Cambodia and India led the list of the most affected countriesThe Fifth Assessment Report of the IPCC stresses that risks associated with extreme weather events will further increase with rising temperatures

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Introduction: The Context

An average of 20 major storms hit the Philippines every year – Typhoon Hiayan was the 25th tropical storm to enter Philippine territory in 2013

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THE PHILIPPINE EXPERIENCE

Typhoon

Haiyan , known locally, as Yolanda hit the Eatern Samar on 7 November 2013

It caused storm surge with sustained winds of 147 mph and gusts of 171 mph

Over 14 million people affected in 46 provinces

5 million people saw their homes severely damaged or damaged

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Philippine Response to Climate Change

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Significance of the Study

The Role of the State and the Bureaucracy in Environment Regulation under the context of “Democratic Constitutionalism”Climate Change as a development issue and not just an environmental issue which affects the poor, the marginalized and the most vulnerable members of the global and local communityThe Changing Role of the Judiciary - from dignified silence to now as an active participant in environment regulation that calls for the application of Climate Justice

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Theoretical Framework

The Role of the Judiciary in the Promotion of Climate JusticeTowards a Resilient PhilippinesON DEVELOPMENT:Climate Change as a Development Issue PARTICIPATORY & PEOPLE-CENTERED DEVELOPMENTThe Role of the State and the Bureaucracy

CLIMATE JUSTICE Towards Sustainable Human Development:Social Justice and Equity

Climate Change Phenomenon as the Context

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Climate Change as a Development Issue

Climate Change is a global phenomenon that affects the economies and socio-cultural, ecological and other vulnerabilities of countriesBeing a developmental issue and not merely an environmental concern, climate change has become a defining and most challenging sustainable development issue of the 21st centurySource: Todaro, et. al. 2011; Mendoza 2014 citing World Bank 2010 and Letchumanan 2013

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Conventional Strategies

Climate change can be addressed through two main approaches:Climate change adaptation seeks adjustments in natural or human systems in response to actual or expected climatic stimuli, or their effects, that moderates harm and exploits beneficial opportunities Climate change mitigation seeks to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate systemSource: UNFCCC 1992

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The Rule of Law Principles

Addressing Climate ChangeRules of Law Principles, Climate Justice and Sustainable Land UseClimate change presents an existential threat to the well-being of all society, especially the poorest and most marginalized groupsWomen, children and indigenous peoples in the world’s poorest countries are significantly affected by changes in land use due to climate change Weak regulations, institutions and redress measures are foreclosing opportunities for more sustainable landscapes on all levels, leading to inequitable, un-transparent and ultimately, ineffective climate policies Rule of law responses, guided by global calls for climate justice, offer principled approaches and innovative legal strategies to support climate mitigation, adaptation and finance for sustainable developmentSource: IDLO 2014

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Climate Justice as the Higher Order Strategy to Combat Climate Change

Climate Justice is considered as the higher order of Climate Change Mitigation and AdaptationClimate Justice is also used with reference to legal systems, where justice is achieved through application and development of law in the area of climate change

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Climate Justice as the Higher Order Strategy to Combat Climate Change

Addressing Climate ChangeClimate justice is generally used as a term for viewing global warming as an ethical issue and considering how its causes and effects relate to concepts of justice, particularly environmental justice and social justiceThis can mean examining issues such as equality, human rights, collective rights, and historical responsibility in relation to climate change

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Climate Justice, Defined

“To ensure communities, individuals and governments have substantive legal and procedural rights relating to the enjoyment of a safe, clean, healthy and sustainable environment and the means to take or cause measures to be taken within their national legislative and judicial systems and, where necessary, at regional and international levels, to mitigate sources of climate change and provide for adaptation to its effects in a manner that respects human rights”Source: International Bar Association 2014: 2

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Sustainable Development

Hague Report (1992) Sustainable Development: From Concept to Action The call for sustainable development is not simply a call for environmental protection but it actually implies a new concept of economic growth – one that provides fairness and opportunity for all the world’s people, not just the privileged few, without further destroying the world’s finite natural resources and carrying capacity

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The Institutional Framework for Environment Regulation in the Philippines

Delloro 2015

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The Institutional Framework of Climate Change Justice

The 1987 Constitution was drafted at a time when there was a growing concern about the preservation of a healthy environmentThe discussions during the Constitutional Convention manifested a clear desire to make environmental protection and ecological balance conscious objects of police power (Bernas 2009: 90)

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The Institutional Framework of Climate Change Justice

The Constitutional Mandate for the Protection of the EnvironmentThus, Section 16, Article II on the Declaration of Principles and State Policies of the 1987 Constitution provides that:  “Section16. 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”

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The Role of the Judiciary

The Philippine Supreme Court as a Public Administrative System:Supreme Court as a PAS (Alfiler)Judicial Power & Judicial ReviewConstitutional Separation of Powers: Executive Leadership, Legislative Intent and Judicial Interpretation (Rosenbloom)Supreme Court as the Last Bulwark of Democracy: The Role of the Judiciary as the Guardian of the Constitution and as the Court of Last Resort

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Constitutional Mandate: The Judiciary

Article VIII of the 1987 Constitution provides that: “Section 1. The Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the Courts of Justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

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Judicial Review, Requisites

Actual Controversy and RipenessLocus Standi (Real Party in Interest)Must be raised at the earliest opportunityCase: Oposa vs Factoran, Jr. (224 SCRA 792) in 1993 Source: Bernas 2009

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Judicial Review, Defined

“The power of judicial review is the SC’s power to declare a treaty, international or executive agreement, law, presidential decrees, order, instruction, ordinance, or regulation unconstitutional.” Notably, it also includes the power to declare unconstitutional the “application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations” even if the legal basis for the action is itself the Constitution.Source: Bernas 2009

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Rules of Procedure for Environmental Cases: AM No. 09-6-9-SC (2010)

Citizen Suits – giving the right to ordinary citizens to initiate legal action to enforce their right to the life sources (a.k.a. environmental right)Consent DecreeTemporary Environmental Protection Orders (TEPO) in cases of threat of serious damage to the environment (or life sources)Writ of KalikasanWrit of Continuing MandamusProtection against harassment countersuits (i.e., SLAPP suits – Strategic Lawsuits Against Public Participation); andAdoption of the Precautionary Principle

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Rules of Procedure for Environmental Cases: AM No. 09-6-9-SC (2010)

The Rules lay down procedures governing the civil, criminal, and special civil actions in all trial courts regarding environmental cases, with a view to protecting and advancing the constitutional right of the people to health and to a balanced and healthful ecology, and providing a simplified, speedy, and inexpensive procedure for the enforcement of environmental rights under Philippines law

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Climate Justice Towards Sustainable Development and Resilient Philippines

TWO LANDMARK CASESMETROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners, Versus
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, Respondents. G.R. Nos. 171947-48               February 15, 2011RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPES TANON STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES AND THE OTHER CETACEAN SPECIES, Joined in and Represented herein by Human Beings Gloria

Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of God’s Creations,

Versus

SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and his capacity as Chairperson of the Tanon Strait Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BEAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BEAR Regional Director-Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC.G.R. No. 180771 & 181527 APRIL 21, 2015

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The Right to a Balanced and

Healthful Ecology MMDA vs Concerned Residents of Manila Bay “This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.”

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The Right to a Balanced and

Healthful Ecology MMDA vs Concerned Residents of Manila Bay “At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and for many decades in the past, spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a difference”

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The Right to a Balanced and

Healthful Ecology Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for Environmental Cases, it has been consistently held that rules of procedure “may be retroactively applied to actions pending and undetermined at the time of their passage and will not violate any right of a person who may feel that he is adversely affected, in as much as there is no vested rights in rules of procedure.”

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The Right to a Balanced and

Healthful Ecology Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. The terminology of the text reflects the doctrine first enunciated in Opasa v. Factoran, insofar as it refers to minors and generations yet unborn

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The Right to a Balanced and

Healthful Ecology Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. In light of foregoing, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition.

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Some Lessons and Conclusions

Climate change is a global phenomenon that poses real and imminent peril to the planet and all its inhabitants. It affects the economies and socio-cultural, ecological, and other vulnerabilities of countries (Mendoza 2014) and is thus necessarily a development issue which has greater consequences for the least developed counties like the Philippines With poverty still looming in the country, a significant portion of its population does not possess adequate resources to insulate themselves from the potential dangers attendant to climate change. The role of the State and the bureaucracy to address the challenges of climate change has therefore become more important than ever

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Some Lessons and Conclusions

The concept of climate justice is discussed as the third-order strategy, along with mitigation and adaptation, to address the issues of climate changeClimate Justice is anchored on the rule of law concept which seeks to provide substantive legal and procedural rights relating to the enjoyment of a safe, clean, health and sustainable environment providing for the means to take or cause measures to be taken within the country’s legislative, executive and judicial systems to mitigate sources of climate change and provide adaption to its effects in a manner that respects human rights (IBA 2014: 2)

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Some Lessons and Conclusions

The pressing concerns attendant to Climate Change have given rise to new mechanisms and strategies on how the governments pursues Environment Regulation in the PhilippinesThe institutional framework of environment regulation in the country is evolving as a response to climate change issuesThe Judiciary plays an important role in the promotion of climate justice as the “Guardian of the Constitution” and as the “Court of Last Resort”

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“The notion of human rights builds on our shared humanity. These rights are not derived from the citizenship of any country, or the membership of any nation, but are presumed to be claims or entitlements of every human being. They differ, therefore, from constitutionally created rights guaranteed for specific people.”

Amartya Sen, The Idea of JusticeClimate Justice as Human Right

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References

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Thank you!