By Gregorio Rafael P. Bueta - Philippine jurisprudence on the environment has been on a steady pace of development since the 70’s and 80’s. It got a global boost when the famous case of Oposa vs Factoran came out in 1993. In it, the Philippine Supreme Court bravely and courageously gave standing to generations yet unborn - an argument from the creative legal mind of Atty. Antonio Oposa, Jr. Since then the Oposa case has been cited and replicated all over the world, more recently in on-going climate litigation cases such as the Juliana case in the US.
For a country like the Philippines - one of the most megadiverse countries in the world, rich in natural resources, and home to unique flora and fauna - environmental laws and measures to protect nature are crucial. This becomes more of a challenge for a developing country with 110 million people, and rising. Not only will nature and ecosystems be pushed to the brink, but more importantly conflicts over these scarce resource will increase. More people will be pushed into poverty as food and water security are threatened, public health costs rise, and infrastructure are not ready to cope with natural and man-made disasters (crucial for a country which sees an average of 20 typhoons in a year!).
The Oposa Case stands alongside a long list of environmental jurisprudence from the Philippines. A long line of decisions of Philippine courts have sought to protect the environment and give life and meaning to the constitutional right of the people to a balanced and healthful ecology. Some of the more recent ones include: the clean-up of Manila Bay ordered through a Writ of Continuing Mandamus; standing was given by the court to humans to represent the toothed whales, dolphins, porpoises, and other cetacean species (the Resident Marine Mammals), which inhabit the waters in and around the Tañon Strait in the central Philippines; application of the precautionary principle in genetically modified eggplants; liability for damage of coral reefs by a foreign military vessel; and road sharing for carless people.
Public interest litigation for the environment and nature was also given a boost when the Supreme Court designated environmental courts around the country (117 in total) in 2008, and issued the Rules of Procedures for Environmental Cases (The Rules) in 2009. These Rules provided for simplified and streamlined measures to speed-up environmental litigation, and make it easier for the public to bring cases – after all, someone needs to represent the environment in these disputes.
The Rules also include the one-of-a-kind remedy called the Writ of Kalikasan (or nature). It is a form of special civil action in environmental cases, a judicial remedy in case of “environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.” Considered as the first-of-its kind in the world, it is a unique tool by which petitioners can invoke the extraordinary writ powers and jurisdiction of the courts.
Another useful remedy provided in the Rules is the Writ of Continuing Mandamus, taking cue from jurisprudence in the Manila Bay Clean-up Case. It is a remedy when a government agency or officer unlawfully neglects a duty imposed upon him by law in connection with the enforcement or violation of environmental laws, rules and regulations, or rights, or unlawfully excludes another from the use or enjoyment of such right. This writ allows the court to require the government agency or officer to perform an act or series of acts until the judgment is fully satisfied and to submit periodic reports on its progress. The court may evaluate and monitor compliance with its judgment, by itself or through a commissioner or appropriate government agency. The remedy of continuing mandamus is further unique in that it allows the award of damages where the government maliciously neglects to perform their duties. Variations of this Writ have been utilized in other jurisdictions like Australia, India, Pakistan, and the United States of America.
The Rules also feature environmental protection orders, SLAPP, citizen’s suits, and waived filing fees – making environmental litigation much simpler, accessible, and effective.
Environmental cases have surely increased with the Rules, with more Writ of Kalikasan case pending in different courts around the country. However, what about climate change litigation? Are we going to see the shift from purely environment to climate change cases?
First, let’s start by defining climate change litigation. The generally accepted definition is that of Markell and Ruhl: any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts. For our purposes, let’s work with this definition, although many scholars note that a broader definition of climate change litigation is possible.
Is climate change already in Philippine jurisprudence? In the Manila Bay Clean-Up Case, Justice Presbitero Velasco began his ponentia as such:
The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals by itself. But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrastinators can still be heard. [Emphasis supplied]
Although there is no other mention of climate change in the case and one can categorize this decision as one for environmental enforcement, it is clear that the Supreme Court recognized the causal link between environmental pollution and climate change.
In the case challenging the constitutionality of the Enhanced Defense Cooperation Agreement (one where environment was not even an issue), the Supreme Court had occasion to say in its Epilogue that “[t]he Philippines is one of the countries most directly affected and damaged by climate change”. Although climate change was not discussed, the court showed its awareness and acceptance of the country’s vulnerability to the global phenomenon.
Despite these court pronouncements, there is yet no climate change case in the Philippines based on the definition of climate change litigation adopted for this article. Perhaps the closest attempt was the recent Road Sharing Case. Petitioners hinged their arguments on climate change and its impacts for a country like the Philippines. In its Decision denying the petition, the Supreme Court said that the government was able to show that it was taking action to address the environmental issues raised, and that the court cannot compel the Executive branch to implement a principle, which requires the exercise of discretion and cannot thus be the subject of mandamus.
There is however one unique case from the Philippines because redress was not sought from the regular courts. Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement petitioned the Commission on Human Rights of the Philippines (CHR) on behalf of 13 organizations and 20 individuals, alleging that some 50 companies, referred to as the Carbon Majors — including Chevron, ExxonMobil, Rio Tinto, Lukoil, and Massey Coal — knowingly contributed to the root causes of climate change and thus violated the human rights of Filipinos. In particular, the petitioners asked whether the top 50 CO2 emitters in the world between 1751 and 2010 (collectively accounting for 21.71% of the world’s CO2 emissions) have violated, or threaten to violate, rights to life; the highest attainable standard of physical and mental health; food; water; sanitation; adequate housing; and self-determination. The CHR conducted hearings in the Philippines and London, invited the carbon majors to participate (but they did not), and received evidence and reports from different stakeholders. The report with recommendations is due middle of 2019. Do note that the CHR only has recommendatory powers and cannot prosecute or hold any respondents accountable.
This does not mean that climate change cases and litigation is not “ripe” for Philippine courts. The judiciary has shown its willingness and openness to decide cases in favor of the environment. Procedural tools such as the Rules can be channeled to look at climate change issues in the Philippines. One author notes that conditions are ripe in the Philippines for the use of climate change litigation as part of a broader advocacy strategy to press for governmental action. This is also aligned with global efforts, particularly in the Asian region, to move beyond environmental adjudication and look at climate change litigation as the next big challenge for judges.
What then are the potential “pioneer” climate change cases to be brought before Philippine courts? ClientEarth suggested five main legal grounds for filing cases on climate change: a) health and environmental laws; b) market regulation; c) loss and damage; d) duty of care for citizens; and e) long-term financial risk. UN Environment’s recent report on Global Climate Change Litigation saw two trends: one on climate refugees, and an increase in cases in the global South.
One expert suggests using existing laws and procedures as potential climate change litigation cases. Victims of the 2013 Typhoon Yolanda (Haiyan) can file anti-graft and corruption cases against negligent government officials – whose potential inaction led to the numerous deaths. Failure to implement rehabilitation plans and to properly use funds can also be an area of litigation. Consumer protection laws can also be used to enforce strict liability for design, manufacturing, and labelling requirements.
One area of potential litigation will be the implementation of adaptation and mitigation measures as outlined in the Philippines’ National Climate Change Action Plan, and even under the Nationally Determined Contributions under the Paris Agreement. Projects funded by the People’s Survival Fund under Republic Act No. 10174, or the way resources have been allocated can also be potential conflict areas. Given the infrastructure boom being pushed by the current administration, as well as projects and developments by the private sector, challenges on the grant of approval for projects, particularly environmental impact assessments and the policy bases for these can be expected.
Victims of natural disasters as a result of climate-induced events can seek compensation for loss and damages. Although identifying the respondent or accused may prove to be difficult, cases can potentially be brought before local or perhaps international tribunals. Displaced persons and families due to climate change (those who can constitute as internal climate refugees) can also seek redress and compensation for the loss of their homes and properties.
So are climate change cases in the Philippines on the horizon? The answer is of course yes. The history of environmental cases and jurisprudence in the Philippines provides fertile ground for litigants to bring cases before the courts. The existing trove of environmental cases, and the active environmental movement in the country can be channeled to look into possible climate change cases, given the clear nexus between environmental issues and climate change. Standing is liberalized, the Rules provide speedy and effective remedies and access to justice, and judges are sensitized to the climate issues hounding the country. Other forums, such as in the CHR, also provide other means by which redress can be sought.
Climate change litigation has come of age globally, and the Philippine courts and legal system should anticipate an increase in cases and potential disputes. Although considered as nascent in the Philippines, there are many potential areas of litigation, particularly for implementation of government policies, liability for loss and damage, and fulfillment of international obligations. It would not be far-fetched to consider an environmental case, such as implementation of forestry laws, as a climate change case, given the known impact of forests on the phenomenon as carbon sinks and buffers for climate-related disasters. Bold decisions and norm-challenging ponencias on climate change from Philippine courts is not a far prospect – it is just a matter of time before another landmark judgement on climate change comes and for the court to be once again a beacon of hope in tackling this global challenge.
About the Author
Atty. Gregorio Rafael P. Bueta is the expert Legal and Policy Consultant with the Asian Development Bank’s Law and Policy Reform Program. He has extensively worked with judiciaries and legal professionals across Asia on environment and climate change law and adjudication, particularly in Bangladesh, Bhutan, Cambodia, India, Myanmar, Malaysia, Nepal, Pakistan, the Philippines, and Sri Lanka. Grip has also been involved in legal and regulatory reforms in South Asia in areas such as energy trade and corporate governance. Prior to joining ADB, he headed the Strategic Initiatives Management Office in the Office of the President of the Philippines focusing on environment and climate change related government policies and programs.
As a private legal practitioner and independent consultant from the Philippines, Grip is an advocate for environmental rights and justice, protection of biodiversity, promotion of human rights, development of good governance, and corporate sustainability. He has written several published works on environment and natural resources law and human rights. Grip has also worked with the United Nations Development Programme, the Philippine Judicial Academy, the Ateneo School of Government, the Council for the Welfare of Children, Ayala Corporation, AC Energy, the EcoWaste Coalition, Laban Konsyumer, Inc., and various NGOs and private companies.
Grip has a Bachelor of Arts degree in Political Science from the Ateneo de Manila University. He earned his Juris Doctor Degree from the same institution and was the recipient of the St. Thomas More Most Distinguished Award for his graduating class.
 Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661.
 Resident Marine Mammals v. Reyes, G.R. No. 180771 April 21, 2015
 ISAAA v. Greenpeace Southeast Asia (Philippines), G.R. No. 20927, 8 December 2015; see Resolution, 26 July 2016.
 Arigo et., al. vs. Swift, et., al., G.R. No. 206510, September 16, 2014
 Segovia et., al. vs. the Climate Change Commission, ey., al., G.R. No. 211010, 7 March 2017
 Saguisag v. Executive Secretary, G.R. No. 212426, 12 January 2016.
 Jolene Lin, Litigating Climate Change in Asia, Climate Law 4, 142 (2014). The author adds: The focus is therefore likely to be on climate adaptation, not mitigation, because maladaptation raises the sort of issues that fit squarely within the environmental public interest litigation tradition in these jurisdictions: infringement of the constitutional right to life, enforcement of statutory rights and duties, and giving voice to marginalized or vulnerable sectors of society.
 These include: mitigation, adaptation, and sustainable development; Paris Agreement commitments and resulting national legislation, including Nationally Determined Contributions; and REDD+ and Green Climate Fund resources and measures.
 See Ronaldo R Gutierrez, Developing Environment and Climate Change Jurisprudence: Philippine Experience, presentation during the South Asia Judicial Roundtable on Environment and Climate Change, 26 November 2016, Dhaka, Bangladesh.