3. Writ of Kalikasan

I. Rule of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) (part 3 of 4)

Section 11. Hearing. - Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing.

The hearing including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.

Section 12. Discovery Measures. - A party may file a verified motion for the following reliefs:

(a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. (b) Production or inspection of documents or things; order – The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties.

Section 13. Contempt. - The court may after hearing punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court.

Section 14. Submission of case for decision; filing of memoranda. - After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision.

Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; (b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; (c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; (d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and (e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.

Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact.

Section 17. Institution of separate actions. - The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

RULE 8WRIT OF CONTINUING MANDAMUS

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

Section 2. Where to file the petition. - The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.

Section 3. No docket fees. - The petitioner shall be exempt from the payment of docket fees.

Section 4. Order to comment. - If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto.

Section 5. Expediting proceedings; TEPO. - The court in which the petition is filed may issue such orders to expedite the proceedings, and it may also grant a TEPO for the preservation of the rights of the parties pending such proceedings.

Section 6. Proceedings after comment is filed. - After the comment is filed or the time for the filing thereof has expired, the court may hear the case which shall be summary in nature or require the parties to submit memoranda. The petition shall be resolved without delay within sixty (60) days from the date of the submission of the petition for resolution.

Section 7. Judgment. - If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may submit its comments or observations on the execution of the judgment.

Section 8. Return of the writ. - The periodic reports submitted by the respondent detailing compliance with the judgment shall be contained in partial returns of the writ.

Upon full satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. If the court finds that the judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket.

PART IVCRIMINAL PROCEDURE

RULE 9 PROSECUTION OF OFFENSES

Section 1. Who may file. - Any offended party, peace officer or any public officer charged with the enforcement of an environmental law may file a complaint before the proper officer in accordance with the Rules of Court.

Section 2. Filing of the information. - An information, charging a person with a violation of an environmental law and subscribed by the prosecutor, shall be filed with the court.

Section 3. Special prosecutor. - In criminal cases, where there is no private offended party, a counsel whose services are offered by any person or organization may be allowed by the court as special prosecutor, with the consent of and subject to the control and supervision of the public prosecutor.

RULE 10PROSECUTION OF CIVIL ACTIONS

Section 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment.

In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected.

RULE 11ARREST

Section 1. Arrest without warrant; when lawful. - A peace officer or an individual deputized by the proper government agency may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws.

Section 2. Warrant of arrest. - All warrants of arrest issued by the court shall be accompanied by a certified true copy of the information filed with the issuing court.

RULE 12CUSTODY AND DISPOSITION OF SEIZED ITEMS, EQUIPMENT,PARAPHERNALIA, CONVEYANCES AND INSTRUMENTS

Section 1. Custody and disposition of seized items. - The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency.

Section 2. Procedure. - In the absence of applicable laws or rules promulgated by the concerned government agency, the following procedure shall be observed:

(a) The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. (b) Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. (c) Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. (d) The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. (e) The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. (f) The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment.

RULE 13PROVISIONAL REMEDIES

Section 1. Attachment in environmental cases. - The provisional remedy of attachment under Rule 127 of the Rules of Court may be availed of in environmental cases.

Section 2. Environmental Protection Order (EPO); Temporary Environmental Protection Order (TEPO) in criminal cases. - The procedure for and issuance of EPO and TEPO shall be governed by Rule 2 of these Rules.

RULE 14BAIL

Section 1. Bail, where filed. - Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases.

Section 2. Duties of the court. - Before granting the application for bail, the judge must read the information in a language known to and understood by the accused and require the accused to sign a written undertaking, as follows:

(a) To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; (b) To appear whenever required by the court where the case is pending; and (c) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia.

RULE 15ARRAIGNMENT AND PLEA

Section 1. Arraignment. - The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment.

Section 2. Plea-bargaining. - On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall:

(a) Issue an order which contains the plea-bargaining arrived at; (b) Proceed to receive evidence on the civil aspect of the case, if any; and (c) Render and promulgate judgment of conviction, including the civil liability for damages.

RULE 16PRE-TRIAL

Section 1. Setting of pre-trial conference. - After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3) days prior to the pre-trial.

Section 2. Preliminary conference. - The preliminary conference shall be for the following purposes:

WRIT OF KALIKASAN

It is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (R7, S1)

The concept of continuing mandamus was first introduced in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay. Now cast in stone under Rule 8 of the Rules, the writ of continuing mandamus enjoys a distinct procedure than that of ordinary civil actions for the enforcement/violation of environmental laws. (Dolot vs. Paje, G.R. No. 199199, August 27, 2013).

What is the nature of Writ of Kalikasan

It is an extraordinary remedy that deals with damage that transcends political and territorial boundaries. Magnitude is measured by the degree of environmental damage that prejudices the life, health or property of inhabitants in two or more cities or provinces. (A.M. No. 09-6-8-SC, p. 133)

What acts are covered by the writ

The unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (A.M. No. 09-6-8-SC, p. 133)

Requisites for the writ to issue:

• There is an actual or threatened violation of the constitutional right to a balanced and healthful ecology;
• The actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and
• The actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Segovia v. The Climate Change Commission, G.R. No. 211010, 2017)

Petitioner has the burden to prove the following:

• Environmental law, rule or regulation violated or threatened to be violated;
• Act or omission complained of; and
• The environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces

A party claiming the privilege for the issuance of a Writ of Kalikasan has to show that a law, rule or regulation was violated or would be violated. (LNL Archipelago Minerals, Inc. v. Agham Party List, G.R. No. 209165, 2016)

Absent a showing that the executive is guilty of “gross abuse of discretion, manifest injustice or palpable excess of authority,” the general rule applies that discretion cannot be checked via this petition for continuing mandamus. (Segovia vs. The Climate Change Commission, G.R. No. 211010, 2017)

What is the effect of filing the petition

The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions (R7, S16)

What reliefs may be granted under the writ

• Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
• Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;
• Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;
• Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and
• Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners (R7, S15)

Period of Ordinary Appeal; Appeal in Writ of Kalikasan Cases

• The period of appeal shall be fifteen (15) working (not calendar) days from the date of notice of the adverse judgment.
• Appeal shall be made directly to the Supreme Court under Rule 45 where questions of fact or of law or both may be raised.