Sunday, July 05, 2015

The end of cute: The return of common sense in environmental litigation

Two developments in Philippine law ended the debate on the contributions of Oposa v. Factoran[1] in environmental litigation. I have always been cynical about, and critical of Oposa; because I have yet to see what benefit the case brought to environmental protection. I will not repeat my attack on the case which has been published elsewhere.[2] I reiterate one criticism of Oposa that is relevant to my argument that this "novelty approach" to litigation that began in Oposa has been written off, probably unwittingly, by the Supreme Court.
The argument I made years ago was that "Intergenerational equity as articulated in Oposa has no practical effect. If the children had invoked their own right to a balanced and healthful ecology, the Supreme Court would have decided the case in the same way. Neither the issues nor the Court’s interpretation of the law would change."[3]
The Supreme Court proved that my argument is correct. The Court did this in two ways. The first was done five years ago though the implementation of the environmental rules.[4] The second way involved a that invoked the rights of marine mammals.[5] 
The environmental rules provide:
SECTION 5. Citizen Suit. — Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order.[6]
An examination of section 5 shows that invoking the rights of future generations, ironically after it was codified, is really pointless. The future generations cannot by themselves file a case to protect their rights. Only the present generation may do so, and when it does, what benefit does it acquire from invoking the rights of future generations? If all cases from this point on are filed on behalf of future generations in accordance with Section 5 the resolution of those cases will not differ had the case been filed by the present generation.
I repeat my position: Had the petitioners in Oposa invoked only their rights, the decision would have remained the same. Under the environmental rules, whether or a case is filed on behalf of future generations, the decision on the merits will remain the same.
This point is made clearer by the Court's decision on a case filed on behalf of marine mammals who were threatened by the exploration, development, and exploitation of petroleum resources. On the issue of standing, the Supreme Court held that because the Supreme Court had promulgated the Rules of Procedure for Environmental Cases, "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."[7]
In effect, there is no need to invoke the rights of non-human life forms if humans are co-petitioners in the suit. The Court did not rule on whether animals had standing to sue.
In both cases, the presence of human petitioners make the rights of future generations or other life forms irrelevant. In Resident Marine Mammals, the Court expressly makes this clear.
The only time invoking the rights of future generations or fauna will make a difference is if their rights are tied to the relief sought by petitioners. Do we seek greater relief because we are invoking the rights of the unborn? Are we asking the Court to protect the environment more because we should factor in the temporal impacts of present human activities? These concerns, however, were never part of Oposa.
Oposa was a novelty that served as a distraction at most. I have always maintained that the "ruling" on standing was never doctrinal[8] and that litigators have never invoked it because there was never any practical use for it. Why? Because litigants know that they only need to invoke their rights to prove standing. For decades Oposa has captivated the environmental movement only to fail it. We have been pursuing an idea that makes no concrete contribution to the protection of the environment. I hope these developments will knock the environmental movement to its senses so we can begin protecting the environment in earnest.

[1] G.R. No. 101083, July 30, 1993.
[2] Dante Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Geo. Int’l Envtl. L. Rev. 457, 457-485 (2003) and Dante Gatmaytan, Artificial Judicial Environmental Activism: Oposa v. Factoran as Aberration, 17 Ind. Int’l & Comp. L. Rev. 1, 1-28 (2007).
[3] Dante Gatmaytan-Magno, Judicial Restraint and the Enforcement of Environmental Rights in the Philippines, 12 Or. Rev. Int’l L. 1, 1-30 (2010).
[4] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, (2010).
[5] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771, April 21, 2015.
[6] Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, [2010].
[7] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771, April 21, 2015.

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