PROHIBITED ACTS: ENVIRONMENTAL LAWS AND PENALTIES

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M. No. 09-6-8-SC)

                                                              RULE 2

PLEADINGS AND PARTIES

Section 8. Issuance of Temporary Environmental Protection Order (TEPO). - If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant.

The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.

RULE 7

WRIT OF KALIKASAN

Section 1. Nature of the writ. - The writ is a remedy available to a 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.

RULE 8
WRIT OF CONTINUING MANDAMUS

Section 1. Petition for continuing mandamus. - When any agency or instrumentality of the government or officer thereof unlawfully neglects 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 unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping.

RULES OF COURT (RULE 39)

Section 10. Execution of judgments for specific act. —

(a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform, any other specific act in connection therewith, and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done shall have like effect as if done by the party. If real or personal property is situated within the Philippines, the court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law. (10a)

(b) Sale of real or personal property. — If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8[c]a)

(c) Delivery or restitution of real property. — The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee, otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a)

(d) Removal of improvements on property subject of execution. — When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after the hearing and after the former has failed to remove the same within a reasonable time fixed by the court. (14a)

(e) Delivery of personal property. — In judgment for the delivery of personal property, the officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy any judgment for money as therein provided. (8a)

Section 11. Execution of special judgments. — When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment. (9a)

JURISPRUDENCE FOR GUIDANCE OF PENRO/CENRO (DEMOLITION)

G.R. No. 161811             April 12, 2006

THE CITY OF BAGUIO, MAURICIO DOMOGAN, and ORLANDO GENOVE vs. FRANCISCO NIÑO, JOSEFINA NIÑO, EMMANUEL NIÑO, and EURLIE OCAMPO

There is, however, no explicit provision granting the Bureau of Lands (now the Land Management Bureau) or the DENR (which exercises control over the Land Management Bureau) the authority to issue an order of demolition— which the Amended Order of Execution, in substance, is.

Indeed,

[w]hile the jurisdiction of the Bureau of Lands is confined to the determination of the respective rights of rival claimants to public lands or to cases which involve the disposition of public lands, the power to determine who has the actual, physical possession or occupation or the better right of possession over public lands remains with the courts.

The rationale is evident. The Bureau of Lands does not have the wherewithal to police public lands. Neither does it have the means to prevent disorders or breaches of peace among the occupants. Its power is clearly limited to disposition and alienation and while it may decide disputes over possession, this is but in aid of making the proper awards. The ultimate power to resolve conflicts of possession is recognized to be within the legal competence of the civil courts and its purpose is to extend protection to the actual possessors and occupants with a view to quell social unrest.

Consequently, this Court held:

x x x the power to order the sheriff to remove improvements and turn over the possession of the land to the party adjudged entitled thereto, belongs only to the courts of justice and not to the Bureau of Lands.

PRESIDENTIAL DECREE 1568

ENVIRONMENTAL IMPACT STATEMENTS (EIS) OF 1978

CEASE AND DESIST ORDER

The EMB Director or the EMB-RD may issue a Cease and Desist Order (CDO) based on violations under the Philippine EIS System to prevent grave or irreparable damage to the environment which cannot be attributed to specific environmental laws (e.g. RA 8749, RA 9275, RA 6969, etc). Such CDO shall be effective immediately. An appeal or any motion seeking to lift the CDO shall not stay its effectivity. However, the DENR shall act on such appeal or motion within ten (10) working days from filing.





SAMPLE LEGAL OPINION 

                                                                                                                                 October 9, 2017

MR. MORENO TAGRA

PENRO

DENR-Siquijor

Larena,Siquijor

Dear Sir,

            Referred to me for comment is the legality or validity of the BARANGAY COUNCIL RESOLUTIONS DECLARING PUBLIC BEACHES IN THE MUNICIPLAITY OF SAN JUAN’S ELEVEN (11) COASTAL BARANGAYS and the ORDINANCE PROVIDING FOR THE ESTABLISHMENT AND MANAGEMENT OF THE CATULAYAN MARINE PROTECTED AREA.

            First, I would like to differentiate an ordinance and a resolution. In the case of Spouses Yusay v. CA, GR no. 156684, “An ordinance possesses a general and permanent character; but a resolution is temporary in nature”. Thus, it is of my opinion that a resolution can be repealed by making another resolution that is correct, valid, and proper. To strengthen such resolution, an ordinance should be made within the legal bounds of the law.

            Second, although the Local Government Code under RA 7160 gives the power of the Sanggunian to approve resolutions for the general welfare, it is also its duty to approve resolutions, ordinance, or any agreements with due diligence of a good father of the family that the same is not contrary to the national laws. Under EO 192, the DENR has given the authority over the foreshore areas and other natural resources. The Barangay Council’s act of declaring public beaches in the Municipality of San Juan’s eleven (11) coastal barangays has encroached the power, authority, and responsibility of the DENR to administer and manage the foreshore areas as mandated under EO 129. Thus, the council’s act of approving the resolutions is invalid because it was created beyond the limits of the authority concerned.

            Third, the Commonwealth Act No. 141 or the Public Land Act considers foreshore as a classification of lands of public domain. This law allows the alienation and disposition of foreshore areas to private parties through lease only. Hence, the declaration of the council is ultra vires and outside the ambit of the law.

            Premises considered, the PENR Office should communicate with the office of Sangguniang Bayan of San Juan that the resolutions are invalid and has no effect. Since resolutions are only temporary, the same can be repealed by making other resolutions that are not contrary to the national law because the filing of the case declaring the resolutions as unconstitutional is very impractical. The Sanggunian Bayan of San Juan, Siquijor can apply Foreshore Lease Agreement or can tap with any individual or private corporations and can agree that business partnership may be created to raise revenue and to give affordable access of the beach to the public.

            Regarding with the establishment and management of Catulayan Marine Protected Area, as long as there is proper coordination with the DENR and BFAR, the same cannot be a hindrance in maintaining the protection and management of the municipal waters, its coastal and fishery resources.

            Thank you very much.

For your humble guidance,

                       

                                                                                                                           ATTY. ERWIN O. SANO

                                                                                                                                   Atty. III - DENR