Laudato Si and the Legal Framework for Environmental Protection and Advocacy in the Philippines

 [Address to Membership Meeting of the National Convention of the Catholic Educational Association of the Philippines, Manila, SMX Mall of Asia, September 29, 2015. My thanks to Atty. Faye Risonar Bello for research and to Bernie Jereza for Powerpoint presentation.]

Just a little over five months ago, on April 24th, 2015, the Feast of the Holy Spirit, Pope Francis published his encyclical “Laudato Si!: On Care for Our Common Home.” It is a letter addressed to all inhabitants of this planet, seeking dialogue on the alarming deterioration of our Planet earth. It is indisputably a powerful document that has caught the attention of people throughout the globe. Its multi-layered message urges all to come together to care for our common home, our Earth.

I will assume that you have held opportunity to read this document. Many of you have already had convocations on it in your schools; others among you are already integrating it in natural science, biology, environmental science, religious education, philosophy, and theology courses. Many of you have already discovered: part of the treasure of this encyclical is the inter-relatedness it articulates between four pillars: first, our relationship with the Creator God (theology, spirituality), second, the current mode of our productive system (consumerist technocratic economy), third, our experience of environmental degradation (in terms of pollution, global warming, loss of biodiversity, etc) and fourth, its impact on people, on human society, especially the poor (victims of war, refugees, internal displacement, rural and urban poverty).

Should you not have had opportunity yet to read it, allow me to recommend a prayerful reading. In his recent trip to the U.S., which many consider to be the center of global power on our planet, Pope Francis presented the message of Laudato Si! not only to the joint session of the US Congress, but also before the largest assembly of world leaders and diplomats in the history of the United Nations. His message was well received; we too ought open ourselves to receive it gratefully.

Our task this evening is not to present the content of Laudato Si. Instead, in the light of its texts, our task is to do a rapid check on whether laws in the Philippines favor or disfavor the implementation of Laudato Si in the Philippines. Pope Francis says:

The establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensible, otherwise the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice” (LS, 53).

Does this legal framework exist? How goes it with our environmental laws? Can we be satisfied that all is well in the light of Laudato Si? Or, as educators in Catholic schools, colleges and university, do we have a duty not only to instruct and form our students, our faculties, and ourselves, but to contribute to the implementation of Laudato Si. We shall do this through appropriate research and community service, including appropriate advocacy not only to sharpen our laws but to demand their implementation.

Themes/Issues explored by the Laudato Si

  1. The Need to Protect an Integral Ecology

“Nature cannot be regarded as something separate from ourselves or as a mere setting in which we live. We are part of nature, included in it and thus in constant interaction with it. Recognizing the reasons why a given area is polluted requires a study of the workings of society, its economy, its behaviour patterns, and the ways it grasps reality. (LS 139)

In his encyclical, Pope Francis is explicit in his message that there is a need to protect an integral ecology, (LS 53) not just for this generation, but also for future generations. For him, an integral ecology is a common good that we should all strive to conserve. Doing so would require among others, the establishment of a legal framework for the protection and conservation of our ecology.

Reflecting on our own laws, we can stipulate for purposes of this discussion forum that such a framework exists. But whether it has been properly implemented, or whether the framework needs to be revised, merits our attention. Consider the following:

  • 16, Article II of the 1987 Constitution provides that 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.

The case of Minors Oposa vs. Factoran, in volume 224 Supreme Court Reports Annotated, page 792 (1993) provides that the right to a balanced ecology is an enforceable legal right. The Supreme Court decided:

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation—aptly and fittingly stressed by the petitioners—the advancement of which may be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first [balanced economy] and protect and advance the second [health], the day would not be too far when all else would be lost not only for the present generation, but also for those to come—generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.

  • Our legal framework is elaborated further in Presidential Decree 1151 (The Philippine Environmental Policy) which lays down the national environmental policies, national environmental targets, the right to enjoy a healthy environment, the guideline for the Environmental Impact Statement (EIS), and guidelines for implementation bodies. PD 1151 is amplified by PD 1586 or the law which provides in more detail the policy on the assessment of the environmental impact of any proposed project. Springing also from PD 1151 is PD 2146, declaring what are Environmentally Critical Areas and Projects.
  • In relation to PD 1151 is PD 1152 (The Philippine Environment Code), which stipulates the management system to be adopted in the five areas of air quality, water quality, land use, natural resources, and waste products.

The Regalian Doctrine and RBH 1

However, alongside this provision in the Constitution guaranteeing the right to a healthy and balanced ecology, we also find the “Regalian Doctrine” enshrined in our Constitution. Under the Jura Regalia theory (where everything belongs to the Crown, now the State), the State can use and exploit our natural resources as it deems fit, even enter into agreements for their use and exploitation.

Not content with what the Constitution has already allowed the Stateprovided, legislators have proposed Resolution of Both Houses of Congress (RBH1).[i] It calls for the amendments of the protective provisions of the 1987 Constitution (the so-called “economic provisions”) through a mere insertion in the Constitutional provisions of the phrase “unless otherwise provided by law” – a scenario that can very well open the floodgates for laws having scant regard for the protection of a balanced and healthy ecology, in the guise of pursuing economic development. A liberalization of restrictions to Filipino ownership of nationalized industries will be even more liberalized, and the certainty of alien nationals owning lands in the Philippines are justtwo of most predictable effects of this proposed resolution.

(On a side note, as members of the CEAP, a national organization of catholic schools, we should also be concerned about this proposed measure as it lists educational institutions among those “nationalized industries” that need to be opened up in favor of foreign companies/schools. In light of the tremendous “birthing pains” we have to face in the coming K to 12 full implementation by 2016, this proposal will only add to the stress that is already acutely felt by our schools, especially our small member schools.)

Mining

Apart from the Regalian Doctrine giving virtual license to State to rape our natural resources, our fragile ecology is also under threat of various economic development projects like mining. Our current mining laws and policies – i.e., Republic Act 7942 or the Philippine Mining Act and its Implementing Rules and Regulations, also known as Department Administrative Order No. 96-40, s. 1996, the National Policy Agenda on Revitalizing Mining in the Philippines, also known as Executive Order 270 and amended by EO 270-a, further strengthened by EO 79 s. 2012 — cater more to the exploration of mineral resources for purposes of “bolstering the economy” rather than on the judicious utilization of a non-renewable resource and the preservation of the environment.

It should alarm us that as of 18 September 2015, the Philippine government approved and registered a total of 999* mining concessions (339 Mineral Production Sharing Agreements, 6 Financial and Technical Assistance Agreements, 36 Exploration Permits, 196 Industrial Permits/Industrial Sand and Gravel Permits, 98 Mineral Processing Permits, 143 Certificates of Accreditation, and 181 mining patents) and about 1,864 more mining applications currently under process[1].[ii] Seen in the context of a rich biodiversity in an archipelagic country that is threatened by mining operations and set against the backdrop of consumer-driven business entities paying little attention to the ecological balance that must be preserved, we should be very concerned about this development.

The existing Philippine mining policy is even misleading, considering that the “economic benefits” our country gets from these various mining concessions are truly minimal compared to the profits that the foreign/domestic corporations will gain from such a venture. According to Mines and Geosciences Bureau data as of July 2014, the mining industry has only contributed a total of 0.7 percent to the country’s Gross Domestic Product — mere loose change compared to what the mining companies reap from such extractions. This is a travesty! The Philippine mineral resources belong to the Filipinos and should not be abused by opportunistic entities! Given a different framework for its development and utilization, these very minerals, that we now give away in unfair and inequitable contracts could help our nation, our environment and our people develop a more positive and sustainable trajectory.

Our twenty (20) year old Philippine mining law and its policies deprived people of access to land and other natural resources, stunted the domestic economy, and destroyed the environment. It triggered some of the Philippine’s worst ecological disasters, such as the Marcopper (1996) and Rapu-Rapu (2005) mine spills. Nevertheless, under this law, the mining industry’s losses pale in comparison with its economic gains. Yet, mining areas are still among the poorest communities nationwide. This law and the mining it permits are responsible for untold human rights violations; many have been killed, sued, and harassed for their opposition. They have forced indigenous communities—the last bastions of our precolonial heritage—away from their ancestral lands through coercion, exigency, or collusion.[iii]

Can our existing EIS protect our fragile ecology?

The issue of mining is made even more problematic when seen in light of the current Environmental Impact Statement (EIS) system that we have and the manner by which Environmental Compliance Certificates (ECCs) and the Free Prior and Informed Consent (FPIC) of the indigenous peoples’ communities in the area are secured insofar as they appear to be merely empty formalism and prone to political machinations and bribery.

Any enhanced EIS system in the Philippines should take into account the impact of the proposed project on the biodiversity and the cultural community thriving in the area. We should likewise draw from the observation given by Pope Francis that an environmental impact assessment should not come after the drawing up of a proposal of a particular policy, plan or program. It should be part of the process from the beginning, carried out in a way that is interdisciplinary, transparent, and free of all economic and political pressure. (LS, par. 183)

Conservation of Biodiversity

Any discussion on a legal framework for the protection of an integral ecology also necessitates looking at our laws that seek to conserve biodiversity. At the forefront, is RA 7586 or the National Integrated Protected Areas System (NIPAS) Act of 1992 which is the government’s articulation of the Constitutional provision of “securing for the Filipino people of present and future generations the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas…” as provided for in the Constitution.

RA 7586 gives the legal framework for the establishment and management of protected areas in the Philippines. It defines protected areas as “the identified portions of land and/or water set aside by reason of their unique physical and biological significance, managed to enhance biological diversity and protected against destructive human exploitation.” The establishment and management of protected areas are part of the international commitments signed by the Philippine Government such as the Convention on Biological Diversity, the Ramsar Convention, the World Heritage Convention, the Convention on Migratory Species, and the ASEAN Agreement on the Conservation of Nature and Natural Resources. The law is now on its 23rd year of implementation.[iv]

Following the enactment of the NIPAS Act, several “site-specific” laws have also been passed declaring other areas in the Philippines as protected areas. To cite as an example, we have RA 9303 which declares Mt. Hamiguitan Range and its vicinities as a protected area under the category of “wildlife sanctuary” and its peripheral areas as buffer zones.

Declaring a certain area as “protected” is significant insofar as the law mandates that these areas be “NO GO” zones for economic development activities such as mining, large agribusinesses like banana plantations and other infrastructure projects in order to conserve biodiversity. Ancestral lands, if identified to be within the protected area, continue to be recognized as such. Tenured migrants staying within the protected area may be designated as “stewards” of the identified zones or habitable portions of the protected area by the government. Anyone who violates or disregards the parameters set within the protected area shall be subjected to fine and/or imprisonment depending on the gravity of the act committed.

While it is comforting to know that areas declared as “protected” have increased over the past few years, there is a need to examine the effectiveness of the NIPAS Act, its implementing rules and regulations that somehow “modified” the provisions of the NIPAS Act as well the other site-specific protected area laws, to determine whether it has truly achieved its objective of protecting the key biodiversity sites in our country.

The reality of overlapping laws[v] and various government agencies using different instruments result in: jurisdictional conflicts (between national and local, or even between two local government units), inaccurate assessments of the metes and bounds of protected areas, and can even create a scenario of development projects (i.e. mining, construction) encroaching on protected areas. Given this, it comes as no surprise, for example, that in the municipality of Tampakan, you would find an exploration permit granted to Sagittarius Mines Inc. in an area that is supposed to have been declared a watershed as well as an ancestral domain land.

We must heed the sobering words of Pope Francis in the Laudato Si (par. 34) when he mentions that:

the degree of human intervention, often in the service of business interests and consumerism, is actually making our earth less rich and beautiful, ever more limited and grey, even as technological advances and consumer goods continue to abound limitlessly. We seem to think that we can substitute an irreplaceable and irretrievable beauty with something which we have created ourselves.”

  1. Addressing Pollution and Climate Change

Humanity is called to recognize the need for changes of lifestyle, production and consumption, in order to combat this warming or at least the human causes which produce or aggravate it. (LS, 23) 

In his latest encyclical, Pope Francis was very emphatic about the issue of pollution – a toxic by-product of our throwaway consumerist culture and how pollution only exacerbates the global crisis of climate change. We must do something about it. In analyzing the legal framework we have for the protection of our ecology, it is interesting to note that we also have existing laws aimed at curbing pollution and addressing climate change in our country. I cite among others: The Clean Air Act of 1998, The Clean Water Act of 2004, The Solid Waste Management Act of 2000, the Toxic Substances and Hazardous Wastes Control Act of 1990 and the Climate Change Act of 2009. The challenge, it would appear, lies in the effective implementation of these laws.

Pollution

             Relative to air pollution, while we do have a law regulating the same, it is silent regarding an equally serious issue of aerial spraying of pesticides in the agricultural sector. (Is this a case of a weak political will that acquiesces to the demands of what Francis refers to as “the all-powerful elite”?)

Case in point. A 2006 study made by the Department of Health revealed that people living in Hagonoy, Davao del Sur (where a large banana plantation is situated) showed high levels of ethylenethiourea (ETU) in their blood samples. ETU and clorothalonil were also found in high levels in the soil and air of the village and, because of chemical drift, even in nearby areas. ETU is a breakdown product of Mancozeb, a fungicide widely used by large scale banana growers but has been classified as carcinogenic by the State of California and the Swedish pesticide regulatory authority.[vi]

We do, however, commend the law for paying attention to air pollution in the urban sector as it tries to address increased motorization, congestion, population growth, greenhouse gas emissions. But to this day, these problems have not also been sufficiently addressed.

While there has been a phase-out of leaded gasoline since 2010 with the implementation of the Clean Air Act, there is little if not scant support given by government and private companies to fund and mainstream more eco-friendly transportation (i.e. the electric-jeep or electric-cars) as well as the popularization of the use of green fuels especially for public utility vehicles. There is also minimal support given to popularizing the installation of emission reducing devices in the exhaust system of vehicles.

While the DENR has been brandishing its accomplishments regarding the reduction of smoke belching, cases of rigged emission tests still abound, smoke belchers continue to ply the streets.

In cities like Metro Manila, the most tangible source of air pollution comes from the heavy traffic that eats up the time, energy and fuel of those plying the roads. Commuters would surely agree that the present efforts in trying to address the traffic situation still leave much to be desired. Banning vehicles with less than 3 passengers during rush hour[vii] is no different from the existing coding scheme. There should be a more pro-active effort on the part of government to improve mass transport systems as advocated by Pope Francis as this is also one way to alleviate the steady rise of fuel emissions coming from bumper-to bumper traffic situations.

As a powerful tool to aid in decreasing motorization in urbanized cities, local government units should also take the lead by implementing “green” laws such as the passage of ordinances that provide for pedestrian and bike lanes or to declare vehicle-free zones in their area, thus reducing mobile air pollution.

With respect to water pollution, while we do have a law that regulates pollution in our waters with the adoption of the “polluter pays” policy in clean-up operations, it has been observed that there is a tendency for errant companies to pass on the burden of paying to their end-consumers by increasing the price of their services.

There is also increasing concern regarding watershed degradation (owing in part to calamities such as flashfloods and the greater frequency of the El Nino phenomenon) and the unmonitored extraction of groundwater by illegal users.[viii] (italics supplied.) In addition, most of the sewage generated in our country is not treated. Major rivers and waterways are also confronted with pollution and degradation due to the encroachment of settlers.

The chronic shortage of water supply in Metro Manila (and other urban areas) and the countryside has brought to the fore, the increased recognition of the adverse effects of man’s activities in the watersheds which has caused erosion and siltation problems in the country’s rivers, lakes and reservoirs. Despite the apparently abundant sources of water, water is becoming one of the critical resources in the Philippines.[ix]

Perhaps the most visible manifestation of our “throwaway culture” is our mounting garbage/ solid waste problem that affects the socially excluded just as it quickly reduces things to rubbish. (LS par. 22) While we do have a law that sets the framework on how to manage our solid waste, it appears that proper implementation is the key to its success.

The soul of our solid waste management law is segregation at source and segregation at collection. On both fronts, the law meets challenges. Concerning segregation at source, it has been observed that residents in some localities are not being educated about proper segregation and recycling. Even barangays are reported to have not been doing anything to address this problem. The usual complaint is always on the lack of funds to do all these. As regards segregation at collection sites, there are also issues – while there may be residents compliant with the Ecological Solid Waste Management Act of 2001 (RA 9003), in some local government units, the garbage collection mixes up what has already been segregated!

This is clearly contrary to what Pope Francis is asking of us, that we modify our consumption in order to reduce the waste we generate and develop an effective system of waste disposal and recycling; adopt a “circular model of production” capable of preserving resources for present and future generations (LS par. 22) Sadly, our industrial system, at the end of its cycle and production, has not developed the capacity to absorb and reuse waste and by-products. (LS par. 22)

Still in relation to the garbage problem, is our government’s inability to effectively enforce laws regulating toxic substances, hazardous and nuclear wastes. You may be familiar with the news involving the dumping by Canada of fifty (50) 40-footer container vans of “heterogeneous plastic scrap materials” in the Port of Manila. Garbage juice was reportedly leaking from those vans and posed extreme health hazards and irreversible environmental problems. The Bureau Of Customs and the Department of Environment and Natural Resources found that the shipment contained mixed waste(non-recyclable plastics, used adult diapers, broken bottles and glasses, waste paper, household/kitchen waste, etc.) – clearly a mis-declaration of contents.

This imported garbage is a clear violation the “Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990” and its importation constitutes illegal trade pursuant to the Basel Convention “On The Control Of Transboundary Movements Of Hazardous Waste And Their Disposal.” In the said convention, the movement of mixed waste between countries is prohibited. The primary objective of this treaty is “to protect human health and environment against the adverse effects of hazardous wastes.” Sadly, last March 2015, a new batch of imported garbage of about 48 container vans was reported have been in the Philippine port since February 2014[x].

In the words of Pope Francis: “the earth, our home, is beginning to look more and more like an immense pile of filth.” (LS par. 21)

Climate Change

For Pope Francis, the climate is a common good, belonging to and meant for all. (LS par. 23) Owing to our lifestyle and consumption, there is a pressing global problem on climate change with grave implications, the worst impact of which will be felt by developing countries. Given this scenario, he reminds us that there is an urgent need to develop policies so that in the next few years, the emission of carbon dioxide and other highly polluting gases can be drastically reduced. (LS, par. 26)

In response to the call, our government passed the Climate Change Act six years ago. Since then, there have been efforts to address the problem of climate change but since the National Policy Plan on Climate Change was passed in 2011 and has only been recently implemented, we have yet to see the full effects of the implementation of this law.

But in reading the text of the law, there appears an “organizational flaw” in the sense that it designates the President of the Philippines as the Chairperson of the Climate Change Commission or the CCC (cf. section 5 of the Climate Change Act). Naming the Chief Executive as the Head the CCC can prove problematic in terms of regularizing the meetings of the CCC in order to effectively implement the National Policy Plan on Climate Change. Section 6 of the law mandates that the CCC meet once every three (3) months, or as often as may be deemed necessary by the Chairperson, but this has not been faithfully complied. The likelihood of regularity of meetings and follow up of the implementation of the National Action Plan is made even more remote if the President is not inclined to make the issue of climate change a priority in his agenda.

In addition, there is a concern about the effectiveness of the monitoring and oversight functions being performed at the national level if the existing structure were to be maintained. Another concern worth taking note of is this: planning and implementation of the action plan must be devolved to the local government level and the latter must be able to draw on multiple sources of funding in order to effectively implement their plans.[xi]

The Biofuels Act   

One concrete measure our government has undertaken in order to curb greenhouse gas emissions, even prior to the passage of the Climate Change Law, was its passage of the Biofuels Act in 2006 (RA 9367). While the said law is a good initiative to lessen greenhouse gas emissions by mandating that our fuels (whether diesel or gas) be mixed with biofuels, the law itself places a cap on the percentile mixture (in an apparent effort of lawmakers to appease the oil gasoline industry tycoons?).

Section 5 of this law sets the limit for bioethanol at 5-10% (vis-à-vis the 95-90% gasoline) and 1-2% biodiesel (vis-à-vis the 99-98% diesel) as the legislated mixture. Any violation of the prescribed mixture subjects the seller/user to penalties under section 12-13 of the said Act. However, this minimal adjustment in fuel compared to our consumer-driven lifestyle we impacts only minimally on the drive to lessen greenhouse gas emissions. In other countries, consumers can actually use 100% bioethanol or biodiesel for their vehicles!

In the greater scheme of things, a better implementation of international agreements as advocated by Pope Francis would truly have a tremendous impact in the local implementation of the climate change law. When there is a sincere effort on the part of the richer countries to internalize the concept of “differentiated responsibilities” by shouldering the bigger portion of the ecological debt and at the same time, provide support to the developing countries in the promotion of renewable and less polluting forms of energy in the hope of reducing greenhouse gas emissions – much can also be done locally to effectively implement our existing Climate Change Act.

  1. Develop Clean and Renewable Sources of Energy

Pope Francis likewise cites in the Laudato Si’ that worldwide, there is minimal access to renewable energy. The resort to renewable energy use is imperative as it is one of the ways by which we can reduce the emission of carbon dioxide gases and other highly polluting gases, for example, substituting Renewable Energy sources with the existing trend that uses fossil fuels. (LS, par. 26)

Connected to this observation is the throwaway culture he questions, as it only seems to benefit a few capitalist individuals at the expense of the excluded. He likewise makes specific reference to the fact that the political will to change the status quo appears to be difficult insofar as our government leaders are also entangled in arrangements with these “few individuals,” resulting in a monopoly of industries that would have otherwise benefited the greater majority of the population.

In the Philippines, this observation is readily apparent. Our existing laws on access to energy and renewable energy, while noble in its intentions, apparently support the interests of a few vis-à-vis the needs of the many.

I cite for instance, our Electric Power Industry Reform Act (EPIRA) which was supposed to bring down electricity rates and improve the delivery of power supply to end-users by encouraging greater competition efficiency in the electricity industry through “privatization.”

The reality, however is clearly different from what the law intended. From the findings from the 2008 Annual Poverty Indicators Survey, it was reported that two in every five poor Filipino families do not have electricity in their homes. 36 percent of families in the bottom 30% income stratum do not have electricity in their homes compared to 8 percent among families in the upper 70% income stratum. At the national level, 16 percent of all families do not have electricity. The regions with the highest percentages of families without electricity are the Zamboanga Peninsula (33%)[xii] and the Autonomous Region of Muslim Mindanao (ARMM) (43%).

While the EPIRA law was intended to protect the common good by institutionalizing the Energy Regulatory Commission (ERC) as an active regulator, protecting public interest by ensuring that providers of power services are viable and that consumers are charged fair and reasonable rates, it appears to be susceptible to vested interests.[xiii] While it was able to quickly resolve the complex rate setting issues of well-known power companies like the Manila Electric Co. (MERALCO), the reverse appears to be the case for other lesser known distribution utilities and electric cooperatives.

This has not worked.

When the ERC approved the “Performance Based Rate (PBR)” that replaced the earlier “return on rate base”, it resulted in an increase in rate on the distribution side. While the EPIRA allowed the ERC to adopt “alternative” rate setting methods, the law also cautioned that the rate setting so applied must ensure a reasonable price of electricity (section 43 [f] of RA 9136 a.k.a. the EPIRA law.)

Quoting an Opinion article published in the PDI: “Under the PBR, a distribution utility is allowed a return on investment on installed facilities and on future investments. The future investments are not mandatory as long as the utility achieves a level of “performance.” It will be penalized if it doesn’t achieve this level of performance.”[xiv]

The said article cites a situation: “when MERALCO announces a multi-billion peso capital investment, the consumers are hit twice — they pay for it and give the utility a return on investment that was already part of the rate base or historical costs. In the first year the Performance Based Rate (PBR) was adopted, MERALCO gained an additional revenue of Php 8 Billion Pesos although it “suffered” a P300-million penalty for non-performance. Businessmen would take that cost-benefit tradeoff anytime. The PBR, which allows rate recovery on investments not yet made by MERALCO is contradictory to section 25 of the EPIRA which says that “retail rates shall be based on the principle of full recovery of prudent and reasonable costs incurred.” With the rising cost of electricity, some resort to electrical theft by way of illegal connections out of sheer desperation which further worsens the problem.

As regards access to renewable energy, while we may have a law that explicitly mandates accelerating the exploration and development of renewable energy resources, there is difficulty in mainstreaming the use and development of RE owing to several factors:

While section 9 of the Renewable Energy Act of 2008 (RA 9513): and section 6 of its Implementing Rules and Regulations provide for a “Green Energy Option,” a program that provides end-users the option to choose renewable energy resources as their source/s of energy, the implementing rules and regulations which the Department of Energy (DOE) in consultation with the National Renewable Energy Board (NREB) are supposed to have formulated are not yet in place. In addition, sec. 9 of the law (still section 6 of the IRR) also provides that the National Transmission Commission (TRANSCO) or its successors-in-interest, Distribution Utilities and all relevant parties are mandated to provide the mechanisms for the physical connection and commercial arrangements necessary to ensure the success of the Green Energy Option but it would seem that this has not been faithfully executed as well.

Apparently, the Green Energy Option is not in the interest of current energy providers whose production is based on burning fossil fuels.

End-users wishing to avail of the green energy option have to comply with what is provided for under section 10 of the law which states: The ERC, in consultation with the National Renewable Energy Board (NREB) and the electric power industry participants, shall establish “net metering” interconnection standards and pricing methodology and other commercial arrangements necessary to ensure success of the net-metering for renewable energy program within one (1) year upon the effectivity of this Act. It would appear that this net metering standards and pricing methodology are not yet fully in place as well.

The existing technology on solar energy as a possible renewable energy (RE) source has one important setback. While solar is a good “use-on-demand” RE source, storing any excess generation of solar power is costly. The batteries are not cheap and would necessitate replacement every two years. More importantly, the used solar batteries pose serious environmental hazards.

Pope Francis however recognizes that until greater progress is made in developing widely accessible sources of renewable energy, it is legitimate to choose the less harmful alternative or to find short-term solutions. (LS par. 164) But the ultimate goal is really to progressively replace, without delay, our reliance on technology that is based on the use of highly polluting fossil fuels.

Finally, the whole power/energy business is embroiled in politics and corruption, and capitalists with vested interests take an active hand in influencing policymakers – something which impede the amendment of any existing legal framework for RE. This demands a socio-cultural upheaval and a strong political will if reforms are to be made.

  1. Ensuring Universal Access to Clean and Safe Drinking Water

Pope Francis reiterates that fresh drinking water is an issue of primary importance, since it is indispensable to human life and for supporting ecosystems (LS par. 28) and notes that one particularly serious problem is the quality of water available to the poor. In the Philippines, this call could not have come at a more appropriate time, seen in light of the water shortages experienced in various parts of the country coupled with the rising costs of water rates.

And yet, in the international community, the right to water has already been recognized as fundamental human need, essential for life, and a prerequisite for the realization of other human rights. Quoting from the said international document[xv]: “Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity.”

The reality however, is that access to clean, safe and affordable drinking water is still inadequate not only in the Philippines but all over the world. 884 million people do not have access to improved sources of drinking water, while 2.5 billion lack access to improved sanitation facilities. The lack of safe drinking water, sanitation, and hygiene has resulted in serious diseases that kill millions of people each year. A child dies every fifteen seconds from diarrheal diseases, which are most commonly related to contaminated drinking water and inadequate sanitation. A vast majority of people who lack access to adequate water and sanitation live in lesser-developed countries. For the Asian Pacific region, access to safe drinking water is an especially significant issue; a majority of countries in the region, a third of the population lack sufficient sanitation services.

In the Philippines, the recent 2014 Annual Poverty Indicators Survey (APIS) conducted by the National Statistics Office reveals that 85.5 percent of the 22.7 million families comprising our population have access to safe water supply, but it is water coming from the community water system piped into a dwelling, yard or plot, public tap, and protected well. The remaining 14.5 percent of families (about 14.5 million Filipinos) use unsafe sources of water from unprotected wells, springs, rivers, ponds, lakes, rain water, and tanker trucks or peddlers. Today, that the poorest of the poor do not have access to safe, clean, affordable drinking water remains an undeniable fact.

The Asian Development Bank has identified water as an essential component in improving the lives of the AP-region’s 900 million poor people. Given these numbers, it should be no surprise that the issue of water has become important on the world’s political stage. Interestingly, instead of adopting protective state measures to address this issue, privatization of water utilities has become the central strategy both globally and in the Asian Pacific region for dealing with the water crisis.[xvi] But while privatization may have some benefits, it also has its disadvantages – most of which are acutely felt by the poor.

Manila, the capital city of the Philippines, serves as an important example of how privatization has been implemented in Asia. The experience of privatization in Manila shows how private sector involvement harms the human right to water through high prices, inadequate access, and insufficient quality, which pose real threats to human health.

As a result of the privatization efforts by the government of its public utilities, the water rates drastically increased in Metro Manila. Between August 1997 and January 2007, it was reported that the increase was as high as 357% for Maynilad and by 414.4% for Manila Water. Aside from increased water rates, corporations are fast eating up freshwater resources. Nestle’s mineral water plant in San Pablo City is being blamed by local residents and farmers for the declining freshwater availability.[xvii] For the poor, this only meant that access to safe and clean drinking water became even more inaccessible. This also lends credence to the Pope Francis’ warning that the control of water by large multinational businesses can become a major source of conflict in this century. (LS, par. 31)

Access to clean and safe drinking water is made even more problematic when you factor in water pollution – owing to factories spilling toxic waste in rivers and other water systems as well the toxic remnants of aerial and pesticide spraying seeping into our groundwater, polluting the most readily available drinking water especially for the poor, according to the 2014 Annual Poverty Indications Survey (APIS) results as shown above.

As a basic human right that ought to be made readily affordable and accessible for all, the difficulty of obtaining clean and safe drinking water truly is unacceptable. We must revisit our existing policies and determine to what extent can our government, in the interest of the common good, step in and intervene (i.e. increase funds to provide clean water and sanitary services among the poor.)

As a guide, UN General Comment No. 15 highlights that, in order to ensure that water is affordable, states should adopt the necessary measures that may notably include appropriate pricing policies such as free or low cost water. This is in consonance with the call of Pope Francis to pay our social debt we owe the poor who lack access to drinking water, because they are denied the right to a life consistent with their inalienable dignity. (LS, par. 30)

  1. Justice for the Excluded

Pope Francis in his encyclical also makes specific reference of the need to show special care for indigenous communities and their cultural traditions as they are not merely one minority among others but should be regarded as principal dialogue partners, especially when large projects affecting their land are proposed.

In 2007, the international community gave due recognition to the rights of the IPs through the UN Declaration on the Rights of the Indigenous Peoples (UNDRIP 2007) which included, among others, the right to self-determination (art. 3), the right to lands, territories and resources (arts. 25-30), right to be secure in the enjoyment of their own means of subsistence and development and engage freely in all their traditional and other economic activities (Art. 20), the right to free prior and informed consent (art. 10,11,19,28,29,32), the right to determine and develop priorities and strategies for exercising their right to development and for the development and use of their lands, territories and resources (art. 23, 32) and the right to culture and identity. (art. 2,3,5,7-9, 11-15, 24-25,31,33-36)

In the Philippines, affording protection to our indigenous communities was given legal framework through the Indigenous People’s Rights Act (IPRA) of 1997. It was supposed to correct previous legislations that paved the way for the unlawful deprivation of lands belonging to the indigenous communities as well to honor the time old jurisprudential doctrine in Mateo Carino vs. Insular Government [xviii] where the Supreme Court held that ancestral lands and domains were never part of the public domain or subject to state ownership for the simple reason that these lands remained with the unconquered indigenous peoples and remained as private lands owned by either clans or individuals.

However, while this is indeed the law, it limps in its implementation insofar as the “Regalian Doctrine” inscribed in our 1987 Constitution still impedes the full recognition and ownership (and its eventual utilization) of ancestral lands insofar as the natural resource management system remains “feudal”—meaning that “all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.” [xix]

While a strong law, the IPRA also has some weaknesses. Concerns have been raised about the way in which it simplifies and standardizes concepts like indigenous peoples, customary laws, and conceptions of ancestral domain. This glosses over the differences among various indigenous communities in the Philippines. IPRA has also been undermined by other laws on natural resources like the Mining Act, which results in confusion in its implementation.[xx]

The IPRA has also come under fire owing to its provisions relative to the process of securing free prior and informed consent (a.k.a. the FPIC). The FPIC, as the law intended it, was supposed to be the consensus of all members of the ICCs/IPs which consensus shall be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference or coercion, and obtained from the community after fully disclosing the intent and scope of the activity in an language and process understandable to the community. The FPIC is required for development activities in a proposed area identified as ripe for the exploration, development and exploitation of natural resources.

In reality, the FPIC process has been hugely criticized on account of the fact that consent is frequently “engineered” and the indigenous communities are manipulated and subverted by the government and project proponents through various means. In some projects, the proponents provide the IPs with incomplete information, and oftentimes the information provided is biased in favor of the project. In other instances, project proponents through the connivance (?) or meekness (?) of some LGU officials, create “fake” tribal councils (these are the non-representative indigenous leaders) in order to grant favorable FPICs. These acts are merely some of the atrocities committed at the community level which capitalize on the government’s neglect of the indigenous peoples. Because of these anomalies, the FPIC process has been perceived by many affected indigenous peoples as merely a technicality that has to be complied with and must be dispensed with the soonest. Some even criticized the government agency handling FPIC processes — the NCIP as biased, considering that it is a government agency that is directly under the President whose policy favors development projects such as mining.

An alarming development relative to this issue is the increased human rights violations committed against members of indigenous communities in those areas where exploration permits or mining concessions are granted by the government insofar as these mining concessions are almost always within an area where there are ancestral domains. In order to secure the “safety” of these mining operations, paramilitary groups and even the military often act as guardians over the mining areas – the latter’s “vigilance” in watching over the interests of the miners oftentimes result in senseless killings of our Lumad brothers and sisters.

This is contrary to what Pope Francis has been advocating in his encyclical. He urges that the indigenous communities be treated as principal dialogue partners in any development project that affects their land and not be regarded as a mere afterthought.

“For them, land is not a commodity but rather a gift from God and from their ancestors who rest there, a sacred space with which they need to interact if they are to maintain their identity and values. When they remain on their land, they themselves care for it best. Nevertheless, in various parts of the world, pressure is being put on them to abandon their homelands to make room for agricultural or mining projects which are undertaken without regard for the degradation of nature and culture.” (LS 146)

Apart from the IPRA law, also relevant to this discussion is the on-going peace process between the Government of the Philippines with the Moro Islamic Liberation Front that led to the drafting of the Basic Law for the Bangsamoro now pending in Congress. With the limited time that Congress has left, it is imperative to pass the BBL now. The non-attendance by our lawmakers in the sessions leading to a lack of quorum, displays a lack of sincerity on their part to do their lawful function as statesmen/women and as “peacebuilders.” It also reflects a level of insensitivity to the plight of our Bangsamoro brothers and sisters who only wish to establish their identity and assert their right to self-determination.

With the existing Autonomous Region of Muslim Mindanao having been seen as a failed experiment by the government because it did not fully realize the concept of an “autonomous” entity, it is incumbent upon our lawmakers to pass an authentic organic law faithful to the principles enshrined in the Framework Agreement on the Bangsamoro and the Comprehensive Agreement on the Bangsamoro, our Government’s commitment to the Bangsamoro people – as this is also our response to Pope Francis’ call to respect the rights of peoples and cultures, and to appreciate that the development of a social group presupposes a historical process which takes place within a cultural context and demands the constant and active involvement of local people from within their proper culture. (LS 144)

Justice for the excluded demands that we not only take care of our Lumad sisters and brothers in the uplands, and of the Bangsamoro people, it also asks of us to give due regard for the poor that remain “invisible” in the world of rural and urban development.

As Pope Francis cites, the lack of housing is a grave problem in many parts of the world, both in rural areas and large cities, since state budgets only cover a small portion of the land. Moreover, Pope Francis also cites in detail that when the poor live in unsanitary slums or in dangerous tenements, in cases where it is necessary to relocate them, in order not to heap suffering upon suffering, adequate information needs to be given beforehand, with choices of decent housing offered, and the people directly involved must be part of the process.

Our government tried to address this grave problem with the enactment of their pro-poor legislations relative to housing (e.g. the Urban Development and Housing Act of 1992 [RA 7279]). However, as with previous laws already mentioned, its proper implementation appears wanting insofar as it has not been able to eradicate lack of affordable housing stock for the poor generated by appropriate land-use planning and enlightened public housing finance for the poor. And while the law prescribes a procedure for humane eviction of the urban poor, there are still some landowners who willfully violate the same in furtherance not of a more humane city, but of their private good, or pressure LGU’s to do so in their stead. It might be high time to revisit existing urban development laws and plans to see how housing for the poor could be regarded as a “commons” – a responsibility shared by all in furtherance of the common good.

One particular issue that Pope Francis’ was very sensitive about was the plight of our environmental refugees – those internally displaced from their homes as a result of ecological disasters and from various forms of developmental aggression. In the Philippines, this reality is all too apparent with the occurrence of yearly natural disasters as well as multiple development projects that result in the ouster of the poor (and usually those coming from the indigenous communities) from lands they have regarded as their homes. While it may be conceded that our Philippine Government came up with projects that assist in minimizing displacement as a result of natural disasters (whether it has been effective, however, is an entirely different matter), our government policies however, are silent as regards displacement that results from developmental aggression.

Even more disappointing is the languishing in Congress (and the veto by the President of its earlier version) of the law protecting the rights of internally displaced persons that could have addressed this very problem. Quoting the exit report of UN Office of the High Commissioner for Human Rights Special Rapporteur Dr. Chaloka Beyani: “If passed the Bill would constitute a landmark national law, based on the UN 1998 Guiding Principles on Internal Displacement and best practices. It would provide a valuable domestic legal elaboration of the rights of internally displaced persons and the primary responsibility of the Government to protect them. It would help to remove existing administrative gaps, obstacles and uncertainties and establish criminal responsibility for acts of arbitrary displacement by both State and non-State actors.”

This important bill languishes in Congress.

6. Promote an Economy that favors productive diversity and business creativity but at the same time protecting the right of the poor to available employment

Pope Francis mentions in his encyclical that any authentic approach to protecting an integral ecology also demands of us to take into account the value of human work. The goal should not be that technological progress increasingly replace human work, as this is detrimental to humanity. Rather, it is essential that we prioritize the goal of access to steady employment for everyone. In order to do this, it is imperative that we promote an economy that favors productive diversity and business creativity. (LS, 124-129)

The biggest detriment to this call, however, is the culture of capitalism that thrives on a consumerist driven market and is further propelled by our throw-away mentality. It is no surprise that the instant, ready-to-eat food is popular and that the disposables (from napkins, to diapers, water bottles) are preferred rather than commit to recycle what can be recycled, re-use what can be reused.

What is unfortunate about this mentality is that it also de-sensitizes us to the value of human labor. In fact, with such a mentality, assembly machines are the standard of choice for an efficient production of goods rather than ensuring steady employment for the ordinary laborer. And in the event that manual labor is necessary, most businessmen adopt the strategy of contractualization of workers. While others employ this as a legitimate means of cost cutting, it is regrettable that a lot of employers resort to this tactic simply to circumvent the security of tenure provisions provided by our Labor Code.

Despite the culture of inequity that it creates, most turn a blind eye to “contractualization” as the prevailing economic conditions in our country force the ordinary laborer to simply take what available job there is, despite the fact that contractualization enables the employer to shirk the responsibility of regularizing his/her workers at the end of the probationary period and recognizing them as entitled to all the benefits guaranteed by the law.

The practice of contractualization is clearly anathema to what our fundamental law guarantees: “the State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.[xxi]” The same provision moreover indicates that employees are entitled to security of tenure, humane conditions of work and a living wage.

Is Pope Francis against economic development? Is he against the use of machines in the workplace? Reading his encyclical, we can safely conclude NO, he is not against machines in the workplace nor against development. What Pope Francis asks of us is to be creative and come up with alternative models of development, and this entails a responsible reflection of the meaning of economy and its goals with an eye to correcting its malfunctions and misapplications. 

  1. Cultivating an Environmental Education Program

 As a final advocacy point, Pope Francis’ also makes a specific and urgent call to us educators to do our part. As educators, we should develop an “ethics of ecology” and help people, through effective pedagogy, to grow in solidarity, responsibility and compassionate care. (LS 210).

On the issue of water, for example, the Pope laments that educators have fallen short of their responsibility to educate as there is little awareness of the seriousness of such behavior within a context of great inequality. (LS 30) It is not enough to come up the studies, helpful these may be, we should be able to reach out to those directly and adversely affected by these threats to our environment and come up with ways to address the problem.

In fact, there is an existing legal basis for us to do our part through RA 9512, otherwise known as the “National Environmental Awareness and Education Act of 2008 .” Section 3 of the said law states: The Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the Department of Social Welfare and Development (DSWD), in coordination with the Department of Environment and Natural Resources (DENR), the Department of Science and Technology (DOST) and other relevant agencies, shall integrate environmental education in its school curricula at all levels, whether public or private, including in barangay daycare, preschool, non-formal, technical vocational, professional, indigenous learning and out-of-school youth courses or programs.

Environmental education shall encompass environmental concepts and principles, environmental laws, the state of international and local environment, local environmental best practices, the threats of environmental degradation and its impact on human well-being, the responsibility of the citizenry to the environment and the value of conservation, protection and rehabilitation of natural resources and the environment in the context of sustainable development. It shall cover both theoretical and practicum modules comprising activities, projects and programs including, but not limited to, tree planting; waste minimization, segregation, recycling and composting, freshwater and marine conservation, forest management and conservation, relevant livelihood opportunities and economic benefits and other such programs and undertakings to aid the implementation of the different environmental protection law.

The law is comprehensive enough to cover the requirements asked of us by the Pope in his latest encyclical. But have we been faithfully implementing this law in our schools? It might be high time for us to conduct a CEAP-wide survey on our schools’ implementation of RA 9512 and highlight the best practices that we have been able to come up with in the care of our common home.

Closing remarks:

This has been a long presentation. Thank you for your attention and patience.

I hope we have been able together to appreciate that we do have a legal framework appropriate to the achievement of a balanced and healthful ecology. We have an arsenal of environmental laws.

The laws passed in the interests of the common good are however undermined by what Pope Francis refers to in his speech to the United Nations as “an all powerful elite” in the laws that should protect critical areas, in mining laws that favor the privileged or foreigners, in the administration of national protected areas, in the preservation and protection of clean air and water for all, in the management of garbage, solid waste, toxic and hazardous substances, in our shared response to climate change, in the virtual castration of the biofuels act.

Perhaps many of us may recognize these as alumni or alumnae of our schools. Or even ourselves as participants in “an all powerful elite.”

Our commitment to transformative education in the CEAP suggests we transform what needs transformation to bring about an integral and healthy environment for all. We do not begin from scratch. We have an arsenal of laws that can be improved or enforced.

It also suggests that in contributing to a changed world, we also change ourselves – beginning with paying attention to how we consume, or how we waste and pollute, or how we contribute to needless carbon emissions, or how we do not care for the poor who are harmed by our over-consumption, and how our not-caring is somehow connected to our inability to recognize any power or reality greater than our egotistical selves.

Pope Francis insists: it doesn’t have to be that way. There is hope. We are part of that hope.

____________

[i] Resolution of Both Houses No. 1 of the 16th Congress. Annex “1”

[ii] From the webpage of the Mines and Geosciences Bureau. “Mining Industry Statistics” (release date Sepetmber 18 2015)

[iii]  https://aklatangbayan.files.wordpress.com/2013/06/peoples-mining-bill-primer.pdf

[iv] http://www.bmb.gov.ph/index.php/component/content/article/58-protected-area-management/120-establishing-and-managing-protected-areas

[v] Cf. page 11, 13, and page 38 “Legal Framework for Protected Areas: Philippines” by Antonio G.M. La Vina, et.al. IUCN-EPLP No. 81. http://cmsdata.iucn.org/downloads/philippines.pdf (Annex “4”)

[vi]  http://www.congress.gov.ph/press/details.php?pressid=8821

[vii] http://www.autoindustriya.com/auto-industry-news/dpwh-eyes-ban-on-cars-with-less-than-3-people-on-edsa-during-rush-hour.html

[viii] http://www.aecen.org/good-practices/clean-water-act-law-philippines-use-incentives-promote-investments

[ix] https://sustainabledevelopment.un.org/content/documents/1204_philippine.pdf

[x] https://www.change.org/p/the-canadian-embassy-in-manila-re-export-the-98-forty-footer-container-vans-filled-with-mixed-waste-and-trash-from-the-philippines-to-canada-leonaaglukkaq-canembph-ambcanph-honjohnbaird?utm_source=action_alert&utm_medium=email&utm_campaign=349080&alert_id=jqUHnKjNEM_3r2%2BLHxJWmLZfRXSKjFPuo8JBM4xmAzTn24CaO9Axtg%3D

[xi] From the webpage of the Climate Change and Development Knowledge Network.

[xii] https://psa.gov.ph/content/characteristics-poor-families-philippines-findings-2008-annual-poverty-indicators-survey

[xiii] http://opinion.inquirer.net/71714/epira-an-imperfect-law-imperfectly-implemented

[xiv] http://opinion.inquirer.net/71714/epira-an-imperfect-law-imperfectly-implemented

[xv] General Comment No. 15, United Nations Committee on Economic, Cultural and Social Rights (ECOSOC), 2002

[xvi] http://www2.ohchr.org/english/issues/water/contributions/civilsociety/WaterforthePeopleNetworkAsia.pdf

[xvii] Ibid.

[xviii] 41 Philippine Reports 935 (1909

[xix] Section 2, Article XII, 1987 Constitution.

[xx] http://www.oxfamamerica.org/static/media/files/fpic-in-the-philippines-september-2013.pdf (Annex “7”)

[xxi] Article XIII, section 3. 1987 Constitution

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About Joel Tabora, S.J.

Jesuit. Educator
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One Response to Laudato Si and the Legal Framework for Environmental Protection and Advocacy in the Philippines

  1. Pingback: Laudato Si and Climate Change in the Philippines | taborasj

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