Sunday, May 19, 2019
Issues, concerns, and challenges in environmental adjucation in the philippine court system Essay
Introduction The act system is an integral part of environmental enforcement in the Philippines and has made many a(prenominal) great contri providedions to the field. However, environmental cases do non always progress smoothly by meaning of the judicial system. This idea is intended to identify important court- magnitudeed issues in the judicial system that repair or limit environmental adjudication. 2 The issues argon divided in the midst of access to and competency of justice, and sanctioned procedures. spot many of these issues could be analyzed further, this composition testament talllight the hotshots to which attention should be give in any much comprehensive study of Philippine environmental case uprightness of nature. 3 This cover get out also re instructse examples and case studies from the United States to illustrate important legal points, since the U. S. and Philippines fill sympathetic legal systems. II. Issues A. Legal Procedure and Rules of t he act Be eccentric of their unique and complex nature, environmental cases are joltinglytimes hindered by legal mechanisms and overlooks of procedure designed for non-environmental cases.These include rules on stand and curriculum action suits that practically do not play into account the fact that environmental ravish impacts tot all toldy citizens. Further much(prenominal), the nature and science of environmental violations often agency that economys of limitations, evidentiary rules, and burdens of proof are not suitable. Some of these issues foundation be hand lead internally by the judicial system by instructing lower courts to bear rules liberally. The impact of all of these issues, and how many precise present tasks for complainants, is crucial. 1.Standing of Plaintiffs and Citizens Suits In environmental cases, a plaintiff whitethorn not necessarily be legally wound in the traditional star by an act of environ-mental destruction to impair his liveliho od. For example, plaintiffs cannot notice damages for fish killed by contaminant be own they lack stand up, despite the obvious economic loss they suffered. 4 While the destruction of natural aesthetic beauty is a moral outrage that indirectly harms all citizens, at a lower place traditional legal standing person no would take standing to sue.5 Furthermore, environmental laws are designed to prevent catastrophic harm that is often not imminent or digested to one geographic scope, as opposed to the qualify, immediate harms that provide the basis of most standing requirements. 6 diminutive rulings on standing could stifle environmental enforcement, especially since the Philippines lacks sufficient enforcement capacity and personnel. The Philippine peremptory motor inn has held that standing requiresSuch personal stake in the out bugger off of the controversy as to assure that cover adverseness which sharpens the presentation of issues upon which the court depends for illu mination of difficult original questions. 7 The plaintiff himself mustiness postulate some cognizable and redressable lesion. Litigating for a general reality interest, or mere invocation of plaintiffs duty to preserve the rule of law is not sufficient to clothe it with standing. 8 However, the standing requirement is considered a trivia that courts whitethorn waive if the case concerns a paramount public interest.9 In its dictum in Oposa v. Factorum, the Court said that children big businessman even be in possession of intergenerational standing to sue to prevent the destruction of forests for in store(predicate) generations. 10 There are questions as to the strength of these to geld the standing threshold for environmental plaintiffs. While courts may waive practiced standing provisions when a case deals with a paramount public interest, it is not required to do so. 11 Furthermore, judges may reasonably differ on what constitutes a paramount public interest since thithe r is no overridingtheme o define it. For example, in Kilosbayan, the Court found that determining the legality of an online lottery system fell within this definition, whereas in integrate Bar, it held that determining whether deploying marines for crime deterrence violates the Constitution does not. 12 The Court did reduce some of this ambiguity in Oposa by declaring that the right to a balanced and healthful ecology concerns nothing less than self-preservation and self-perpetuation, presumably a paramount public interest.13 However, because the Courts discussion on standing in Oposa was dictum, uncomplete this claim nor the right to intergenerational standing is binding law upon the lower courts. 14 Without further guidance from the Court, it is in all probability that many lower court judges would be reluctant to act boldly by declaring that a particular issue is a paramount public interest and would deny standing. Congress tried to reduce the standing threshold with citizen s uit provisions in environmental statutes, but these stick been of limited use thus far.First, only the Philippine livid Air and Ecological Solid Waste counsel Acts contain citizen suit provisions15 notably, the Philippine Clean Water Act, enacted after these two laws, does not. 16 Second, citizens motionlessness bear the risk of paying a winning defendants attorneys slants, which could be costly enough to discourage even valid suits. intimately importantly, these suits are still subject to the literal controversy requirement of the Constitution. 17 What this means in the context of citizen suits has not yet been heavily litigated in the Philippines.However, lower court judges often require plaintiffs to taper actual injury in the narrow or traditional legal sense. 18 Likewise, when prosecutors deputize citizens to enforce a suit, judges sometimes avow that much(prenominal) deputization is only valid for a single case or even invalid down the stairs the Rules of the Court. 19 As a result, citizens suit provisions rescue been largely un utilise. 20 Standing nether environmental laws is hotly contested in the U. S. 21 The U. S. has put citizens suit provisions into almost all of its environmental laws.22 Plaintiffs are required to show 1) an injury in fact, 2) causation between the injury and the defendants actions, and 3) redressability in court. 23 NGOs can sue upon a showing that any of their members would have had standing to sue. 24 The focus is not on the injury to the environment, but rather the injury to the plaintiff or NGO representing him. However, the injury can be economic or non-pecuniary, including aesthetic or unskilled value. 25 The Court also held that civil penalties payable to the U. S. Treasury serve as redress as they deter polluters.26 Causation is often the more difficult element to prove, which provide be discussed down the stairs in 4. In sunrise(prenominal) Zealand, the Environment Court has taken a more radical approac h. It has eliminated nominal standing provisions, requiring only that a plaintiff have a greater interest than the public broadly in a controversy or that he represents a relevant public interest. 27 This makes citizen enforcement very easy. However, one might also be concerned about whether this would overburden the court granting standing is a fine balance between permitting valid environmental claims and risking frivolous judicial proceeding.2. strain Actions and Large Number of Plaintiffs As the notorious mudslide at Ormoc in 1991 and Marcopper mine tailings in Marinduque show, injuries from environmental damage can be grave, costly, and venture a huge number of persons. 28 yet in less publicized events, the number of injured persons may often make individual litigation burdensome and complex. Furthermore, some members of an injured material body may be as well poor to prosecute their claims individually. Class action suits can facilitate litigation of such situations by p roviding forThe protection of the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation be among numerous litigants with similar claims. 29 Other studies have shown that partition action suits can provide important social get aheads and encourage citizen enforcement to supplement agency regulation. 30 Class actions may the discourage attorney disloyalty that encourages lawyers to plea bargain for less than the actual injury.As happened in the Chinese poachers case in Palawan, lawyers or prosecutors may not seek full compensation for the damage caused because they have an incentive to expend less time and money on a small case. 31 However, because class actions provide aggregate incentives for lawyers, and fees and settlements undergo higher judicial scrutiny, such disloyal settlements are less apt(predicate) to occur. 32 While the Philippine Rules of the Court provide for class action suits,33 judges will sometimes be reluctant to march classes and instead treat the injuries of plaintiffs as separate, despite any common questions of law or fact.In Newsweek, Inc. v. IAC, the Supreme Court ruled that a defamatory remark directed at 8,500 sugar planters do not necessarily apply to every individual in a group, and consequently are not actionable as a class action. 34 Likewise, a judge might refuse to certify a class of pollution victims because they suffer different types of physical injuries, even if the showtime was the same pollution. In a more litigated legal system, there would be more case law to guide judges on the appropriateness of class actions.However, in the Philippines, this does not yet exist. Add to this the high cost for lawyers, and class actions become even less feasible for most Philippine plaintiffs. 35 In the U. S. , it is much easier to litigate environmental class ac tion suits. The Supreme Court has intelligibly instructed courts to construe its class action rules liberally and encourage class action suits. 36 This limits judicial discretion in refusing to certify classes to only extreme situations. Furthermore, the rules allow plaintiffs to join by default rather than affirmatively.37 For environmental cases, the courts will look at the potential number of plaintiffs or the size of the estimated subject fields that a pollutant has infected to see if plaintiffs have met the numerosity requirement, but they are not required to meet a certain minimum number. 38 For the Philippines, which, unlike the U. S. , has too few environmental class action suits, adopting some of these mechanisms may create a more efficient adjudication process for plaintiffs, defendants, and the courts. 3. Statute of Limitations and Delayed InjuriesUnlike a traditional tort or crime, many environmental injuries are not discrete events but only manifest themselves after m any years. Pollutants may build up in soils, waters, or human bodies for years without reaching a insecure level. Cleanup of such sites can take even longer. For example, when the U. S. military left-hand(a) Subic Bay in 1992, it left behind hazardous waste sites with contaminated water that continue to poison the land over a decade later. 39 However, for environmental torts, the statute of limitations is four years, a relatively brief time.This could preclude the litigation of injuries from pollutants with an onset delayed for many years. Thus far statutes of limitation issues have not been a operative factor in environmental litigation. The Philippine Supreme Court addresses similar problems in opposite field of law with the discovery rule, allowing the statute of limitations to run when the plaintiff actually or should reasonably have detect the injury. 40 However, as the courts handle more brown environment cases, it will have to address the tensions between punishing past violators and protecting defendants from time-barred claims.41 U. S. courts have adopted the due diligence discovery rule, oddly for Clean Water Act and wetlands violations. Because immediate detection of pollution or wicked fill into a wetlands is almost impossible, applying a statute of limitations strictly would defeat the remedial purpose of the act. 42 Courts try to install the Congressional purpose of the statute with the due diligence discovery rule and giving the government a chance to file action against the polluter once the violation is reported to the EPA.43 Some courts44 urinate that a statute of limitation may be inappropriate for cases when pollution continues to cause problems over time. These courts conclude that a Defendants unpermitted discharge of dredged or fill materials into wetlands on the site is a go along violation for as long as the fill remains. Accordingly, the five-year statute of limitations has not yet begun to run. 45 The statute of limitatio n will not run for as long as the pollution remains.Many courts will also treat common law tort nuisances as continuing violations. 46 This approach has the added benefit of allowing the government to fine violators for each day the pollution remains, capturing the more of the costs of environmental destruction. 47 practically of U. S. case law realiseing the effect of statutes of limitations on environmental issues comes from ambiguities in the statute of limitation for complex processes, curiously the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or Superfund law.48 Because Congress anticipated the complexness and long-term nature of site cleanups, it structured the statute of limitations in a flexible manner, allowing the court hear an initial cost recovery action prior to issuing a declaratory judgment to vacate letting the statute run. It also allows the plaintiff to file subsequent cost-recovery actions to recapture further response costs i ncurred at the site. 49 However, the laws different statutes of limitation for remedial and removal actions phases of the cleanup has led to confusion over how the phases are defined.Courts often defer to EPA determinations in characterizing the type of action due to its technical expertise, rather than making that judgment itself. 50 4. Meeting the Burden of Proof In environmental cases, there may be no line of direct evidence from the perpetrator to the harm. In pollution cases it is often impossible to prove that the plaintiffs harm was caused by his exposure to the toxic material. 51 For example, if some(prenominal) factories dump pollution into Manila Bay, it is impossible to work which caused a particular environmental harm.Furthermore, the courts cannot expect irresponsible scientific certainty on the effects of a health risk such as electro-magnetic palm from power cables. 52 Given these problems, the traditional burden of proof standards, preponderance for civil cases a nd beyond a reasonable doubt for criminal,53 may prove to be prohibitively high. Philippine courts employ liability- fracture mechanisms to manage this barrier in environmental cases. For example, pursuant to the Fisheries Code, courts use reverse burden of proof to place the burden of defense on defendants found with high-explosive or cyanide sportfishing gear.54 Furthermore, the courts have begun to experiment with the precautionary principle, placing the intact rights to health and safety above development. 55 The courts also employs res ipsa loquitor in tort suits,56 although this has not been a prominent feature of environmental litigation. Plaintiffs may also hold multiple defendants jointly and severally probable(p) for an act of environmental destruction that cannot be traced to a single defendant company, such as the pollution in Manila Bay. 57Until recently, Philippine lawmakers did not see a need to introduce a strict liability58 regime into environmental laws. 59 St rict liability was employed in other fields, but not environ-mental laws. more(prenominal) recent anti-pollution laws such as the Clean Air and Solid Waste Management Acts establish that a violation of the standard is actionable done citizen suits. 60 In U. S. , because of its common law tradition, courts are more willing to employ strict liability. Generally, when a defendant, though without fault, has engaged in a shaky activity , there is no justification for relieving it of liability.61 Such perilous activities include operating explosives, thermonuclear energy, hydropower, fire, high-energy explosives, poisons, and other extremely hazardous materials. 62 For citizens suits under environmental statutes, plaintiffs need only show that the law was violated, not prove fault or any actual or threatened harm, without come across to mens rea. 63 When it is impossible to determine the proportion of fault of a large number of defendants, U. S. courts may approximate fault through o ther indicators, including market share and production output. For example, in Hymowitz v. Eli Lilly Co., the New York Court of Appeals work out the size of each defendant drug companys market share for DES to determine their fault in the injuries caused by the drug. 64 This also allows courts to address injuries sustained in the past by approximating past fault through data available in the present. The Environment Court in New Zealand has adopted an even more radical approach and done away with formal burdens of proof. It focuses instead on obtaining the best possible evidence for a case. This makes it easier for plaintiffs appealing to the court to dislodge an unfavorable opinion from a lower court.65 While the Philippine Supreme Court may not wish to go this far, the court could more strict liability for hazardous materials and market share liability tools. 5. Damages and Remedies Even if a plaintiff wins damages from a defendant, if the defendant keeps polluting or cutting tr ees, the damage will continue. 66 In the Philippines, this is especially problematic as the fines and penalties imposed under law are often not enough to change a companys behavior. In severalise to encourage development, Congress prohibit temporary restraining orders against government projects.67 Since government infrastructure projects can cause massive damage to ecosystems, this prohibition is significant. Some courts try to avoid this loophole by claiming that the prohibition cannot violate a persons constitutional right to health or safety. 68 The extent of this loophole is unclear. Finally, even if a plaintiff or prosecution wins its case, most of the time the true costs of the defendants actions will not be reflected in the award. Damages in civil cases and punishments in criminal cases generally capture the costs of any crucifixion caused to humans, not animals or plants.While some settlements may include forcing a defendant to install pollution-control equipment or co ntribute money to conservation programs, this still likely does not recoup the full extent of damage to the environment. It is difficult to regenerate natural forest, coral reefs, or populations of endangered animals. The judicial system does not have much power to remedy this problem. The decision on the purpose of environmental laws and how much plaintiffs recover is for the Congress. However, it is important for judges to understand that environmental cases deal with only a fraction of the true costs of environmental damage.This may convince some judges to be more sympathetic toward environmental cases. While punishments for defendants may seem exorbitant, understanding the unaccounted costs of environmental damage puts these into perspective. B. Access to and Competency of Justice Aside from the legal issues described above, in any country, there are a host of practical and logistical issues that stuff the judicial systems ability to handle environmental cases. This includes th e lack of financial resources of plaintiffs, particularly in poorer parts of the Philippines.Plaintiffs and their lawyers must also feel safe from physical and financial harassment while litigating their case. On the other hand, both courts and lawyers are often unfamiliar with environmental laws and science, limiting their ability to adjudicate in the field. Finally, court dockets are often congested, and environmental cases are not presumptuousness priority. The judicial systems role in addressing these issues ranges from fairly involved to almost no role. Yet, in attempting to understand environmental adjudication in the Philippines, it is crucial to recognize the role these practical realities play.1. Financial Costs of Adjudication In any legal system, register and litigating a case takes an enormous amount of time and money. Philippine courts impose a filing and copy fee, although these are waived for citizens suits. Reflecting on his experiences, famous environmental attorn ey Antonio Oposa suggested that these costs were the greatest inhibitions for most plaintiffs. 69 Furthermore, for injunctive remedies, plaintiffs must post a bond to cover the defendants potential damages, which may be too large for a poor plaintiff with livestock and property as his only assets.70 Most Philippine lawyers do not use a contingency fee system, so plaintiffs must be able to pay for legal services up front and over the lengthy litigation process. 71 On top of this, there is the risk of financially crushing harassment suits from defendants, or Strategic slip Against Public Participation (SLAPP). Even the logistics of feeding and housing witnesses, and their lost time from work, poses significant problems for predominantly poorer plaintiffs. In the U. S. , NGOs often receive enough donations to allow them to engage in litigation and have staff lawyers. More importantly, plaintiffs attorneysoften work on a contingency basis, allowing poorer plaintiffs to avoid large fina ncial risk. Furthermore, NGOs and environmental groups pursuance injunctive remedies are often required only to pay a nominal bond or may be exempted completely. 72 While some might worry this makes litigation in the U. S. too easy, it drastically improves poor peoples access to justice. Pursuant to the Constitutions emphasis on the poor, the Supreme Court of the Philippines has taken some safaris to alleviate this problem. Poorer plaintiffs are exempted from paying docket, transcript, and other fees and are granted liberate legal counsel.Furthermore, the Court provides an annual grant to the Integrated Bar of the Philippines Free Legal Aid Program. 73 However, not all environmental plaintiffs qualify as poor, particularly NGOs, even though they often have limited financial resources. Furthermore, even though the amount of the bond is under the discretion of the judge, judges are reluctant to do this because they worry about being accused of abusing their discretion. 74 2. Harass ment of Plaintiffs and Lawyers Because of the high lay on the line involved in environmental cases, defendants may go to extraordinary means to intimidate and harass plaintiffs and their lawyers.It is not uncommon for defendants to lodge harassment or SLAPP suits against environmental plaintiffs or DENR prosecutors to attempt to force them to drop their charges. 75 Enforcers who confiscate the equipment of criminals are often sued for robbery. 76 Some defendants take even more extreme means such as physical violence or even murder. 77 Such dangers were recently illustrated by the murder of environmental advocate Elpidio de la Victoria and death threats against attorney Oposa. 78 This makes lawyers unwilling to take on difficult environmental cases.To stifle SLAPP suits, the courts should promptly apply the anti-SLAPP provisions in the Philippine Clean Air and Ecological Solid Waste Management Acts when applicable. 79 This means dismissing any harassment suits as quickly as possibl e. However, plaintiffs relying on other laws have less protection. 80 Congress must magnify the use of anti-SLAPP provisions to other environmental laws. Furthermore, law enforcement must vigorously prosecute any defendants who use to violence. In short, to facilitate environmental cases, the court must protect the ones bringing the cases. 3.Technical Knowledge Among judge and Attorneys Judges must decide questions of science as well as law in order to dispose of most environmental cases. This is particularly true for brown issues, which involve uncertain science regarding the exact effects of a pollutant. In the U. S. , scientific understanding of pollutants led to novel classes of trespass and tort suits that held emitters liable for their actions. 81 However, both sides in a case will try to use any scientific uncertainty to their advantage, or even create scientific uncertainty even when it does not exist in order to confuse the court.Judges must understand what scientific ev idence should be admitted and what is not valid. 82 Judges and lawyers need to understand the science well enough to determine which arguments are unfounded and which are plausible. Because general the courts have general jurisdiction and are not specialized in environmental issues, this problem will have to be addressed by providing judges and lawyers with supplemental training in environmental sciences and law. PHILJA and other organizations are already successfully doing this. 83 Eventually, however, this problem may be resolved through a change in the adjudication system.If the Philippines touch ons toward environmental courts or administrative adjudication84 (as is being considered), judges would be teach specifically to handle environmental cases. 4. Obtaining and Preserving Evidence For green issues, preserving evidence may be difficult. After an illegal logger or fisher is captured, DENR can confiscate the logs and fish. These goods rot or deteriorate over time. tight-lac ed procedure requires taking pictures of the logs and fish for admission into court. Specially trained fish examiners prepare reports on the cause of death of fish.When done correctly, this preserves the evidence for use at court. However, some areas may not have fish examiners on hand or the prosecution may not properly prepare the pictures for permissible evidence. It is not uncommon for custodians of the confiscated items to lose track of them over time. Because cases take so long in the court system, this can be a real problem. 85 It is also difficult for enforcement agents to find and confiscate the equipment and vehicles used in environmental crimes, as the boats and trucks perpetrators use are highly mobile.Despite the inconvenience it may cause defendants, such equipment must be held as evidence and to prevent further environmental damage. The accused, or unindicted conspirators, will often petition for the release of their equipment. 86 Unfortunately, sympathetic lower cou rt judges may sometimes grant these requests, despite the contravening case law. 87 Moreover, prosecutors must have the vehicles stored in a safe area despite the lack of storage space. Finally, it is important for enforcers to determine the location of violators, particularly close to the boundaries of natural parks. community enforcers may not be trained in determining the exact location of where they apprehended the violators. Wealthier units can use GPS, but often the location of apprehension is disputed. 88 Any doubt in this area can destroy the prosecutions case. 5. Docket Congestion In many countries, including the Philippines, courts are charge with cases. Yet, the Philippines forests and animals are already disappearing quickly. Irreversible damage to ecosystems can occur much more quickly than the many years it may take the court system to resolve a case. As Prof.La Vina noted, the environment cannot wait for the court system. 89 According to Justice Nazario, the Philippi nes necessarily over 300 examination court judges to fill the vacancies and resolve pending cases. 90 Low pay discourages the few who are qualified. Many of these vacancies are in remote parts of the country, such as Nueva Ecija, Occidental Mindoro, and Surigao zero(prenominal)te, where much of the fishing and forestry violations occur. Furthermore, the Supreme Court is burdened by the large amount of cases granted review each year, including the robotic review for death penalty cases. 91Given this burdensome congestion, environmental cases are not given any special treatment on their own merits. Criminal environmental cases may be pretty more expedited because they involve criminal punishments, but most judges and lawyers show no urgency with regard to environmental cases. 92 The Supreme Court attempted to alleviate this problem with Administrative Order No. 150B-93, setting up special courts to handle illegal logging, but these remain underutilized. 93 Until cases can move t hrough the court system more quickly, the enforcement of environmental law will be delayed.III. Conclusion This paper has highlighted important legal and practical issues preventing efficient adjudication of environmental cases in the Philippines. However, due to logistical and budgetary constraints, this paper focused mostly on case law from the Supreme Court and the personal experiences of lawyers. In order to fully understand environmental adjudication throughout the court system, further research should ideally analyze environmental cases from all Municipal and Regional Trial Courts, Courts of Appeal, and the Supreme Court.It is important to see how cases area actually treated, particularly with respect to the issues examined in this paper. Furthermore, there may be important regional variations, particularly between areas with more natural resources and more urban areas. Even before such a study is undertaken, the courts can apply several lessons from this paper in the near fut ure. First, while the courts have already taken commendable travel to waive filing fees and other costs for paupers, as mentioned above the definition of pauper may be under inclusive by not including NGOs.The courts should consider other definitions to reflect the realities of environmental NGOs. 94 Second, the Supreme Court should instruct the courts to dismiss SLAPP suits expeditiously. While the natural resource laws may not have anti-SLAPP provisions, Congress clearly did not intend to encourage such suits and there is nothing legally preventing the courts from dismissing them faster. Finally, the courts can address standing for citizens and class action suits. In particular, it should set out a clear position on standing in environmental cases.Other challenges will require long-term planning for the courts. Reducing the docket congestion is critical to expedite justice, although doing this will likely take years and require more judges. Likewise, the ongoing effort to train j udges and lawyers in environmental law and science must continue, particularly as new judges and lawyers enter the judicial system. The courts should also familiarize themselves with the legal mechanisms available to them, particularly in shifting the burden of proof.However, this will be most useful in pollution cases as they become more common in the future. Ultimately, the challenges described above will require multifaceted solutions from various stakeholders in the Philippine legal system. For example, Congress must work to improve standing and citizens suit provisions in other environmental laws. To reduce the financial risk of brining a suit, law firms could move toward a contingency fee system. Furthermore, it is the responsibility of DENR and environmental agencies to fix that evidence is properly recorded and preserved.Finally, as the Philippine grows and wealth spreads, more plaintiffs will be able to undergo the financial costs of adjudication. Eventually, the best solu tion to these challenges may come not from within the courts but from a new adjudication system. The U. S. has worked successfully with administrative adjudication for environmental issues in the EPA and department of Interior. Other countries have set up independent environment courts. Based on the results of further studies and the needs of the country, the Philippines may move to adopt one of these models.This would allow expert adjudicators to handle cases under rules that make sense for environmental issues. Finally, it is important for judges at all levels of the judicial system to understand the severity of environmental degradation in the Philippines. The only redress environmental plaintiffs or prosecutors may have is in their court. Thus, they should not be reluctant to grant standing or award large damages, when appropriate, because doing so will ensure that both humans and the environment have their proper day in court.