By Purple S. Romero
MANILA (AlertNet) - Climate change activists have taken their fight for flooding mitigation measures to the Philippines' supreme court, in a case that would also test the effectiveness of the world's first ever "writ of kalikasan" (nature).
Global Legal Action on Climate Change (GLACC), a civil society organization headed by environmental lawyer Antonio Oposa, has asked the High Tribunal to compel the government to implement two old laws that could ease flooding, a common problem in the Philippines and one expected to worsen as climate change brings more severe storms and sea level rise.
"We, ordinary citizens, dare to come forward and bring up this matter of extreme urgency before a more stable branch of government: a court of justice," GLACC said in its petition. "We, ordinary citizens Â? from whence emanate all governmental power Â? humbly seek to use the law to compel our so-called political leaders to take notice, and then take positive action."
GLACC is seeking a remedy under the writ of kalikasan, described by newly-retired chief justice Reynato Puno as the first legal weapon in the world that empowers the man-on-the-street to seek concrete actions for ecological protection from their government officials. The high court promulgated the writ last April.
USING LAW TO FORCE GOVERNMENT ACTION
Under this writ, the court can issue a writ of mandamus commanding the government to execute laws already on the books. In this case, those include Republic Acts 6716 and 7160, which mandate the construction of rainwater collectors, mainly manmade ponds.
"The simple solution (to flooding) is to find a receptacle for the excess waters," GLACC explained in its petition. "In areas that have already been paved over with concrete, like our cities, the need to put up water catchment and rainwater collectors is even more pronounced and even more urgent."
RA 6716, the rainwater collector and springs development law, enacted on March 17, 1989, requires each barangay, or village, to have a rainwater collector.
Section17 of RA 7160, or the local government code, directs local government officials such as mayors to provide "small water impounding projects and other similar projects; fish ports; artesian wells, spring development, rainwater collectors and water supply systems; seawalls, dikes, drainage and sewerage, and flood control."
If the high court grants GLACC's petition for a writ of kalikasan, it will force a range of government agencies, from the Office of the President to the Department of Public Works and Highways (DPWH), the League of Municipalities, Cities and Provinces and the country's Climate Change Commission to fund and oversee the establishment of 100,000 rainwater collectors all over the Philippines.
All of the above agencies by law are responsible for the creation and maintenance of rainwater collectors. The Climate Change Commission is a newly-formed body that coordinates programs and policies on climate change mitigation and adaptation.
ACTION ON FLOODING LONG OVERDUE
RA 6716 mandates the establishment of 100,000 catchment ponds nationwide, but according to the national public works department only four have been constructed since the law was enacted in 1989.
"More than 21 years have passed and this law lies atrophied in the sickbed of non-compliance," GLACC said in its petition.
GLACC particularly named as respondents the city of Mandaluyong, the municipality of Binalonan in the province of Pangasinan, Barangay 84 in Caloocan city and the province of Misamis Occidental. These places are home to over 50,000 villages with no rainwater collectors.
Heherson Alvarez, chair of the Climate Change Commission, said he welcomed the petition.
"These kind of cases should be encouraged," he said.
He noted, however, that the commission, formed in late 2009, would rather provide a systemic solution to the problem of flooding than just create rainwater collectors.
The commission focuses in part on disaster risk reduction and is looking at river basin management as a whole.
"We want to do it systemically," he said.
Mandaluyong city Mayor Benhur Abalos, however, was surprised that his city was named as a respondent and accused GLACC of cherry-picking.
"They are just looking at one aspect," he said.
Mandaluyong has taken a lead role in responding to the challenges of climate change, he said, though they have prioritized the reduction of carbon emissions.
Mandaluyong is the first city in the Philippines to pass an ordinance mandating the conversion of two-stroke engines in three-wheel motorbikes to four-stroke engines. Four-stroke engines use less fuel and are more environment-friendly.
LAWYER HAS PREVIOUS WINS
The potentially landmark case would not be the first for Oposa, who has pushed through a number of ambitious legal orders so far.
In 2008, Oposa succeeded in getting the court to compel the government to clean up Manila Bay, a 19 kilometer-long harbor damaged by pollution.
As a result, the Department of Budget and Management allocated 1.64 billion pesos (about $21 million) for the cleanup the following year.
The Manila Metropolitan Development Authority and the Department of Environment and Natural Resources (DENR) said they would use the money to improve water quality management and rehabilitate drainage systems.
Turning the money into action has still proved difficult, however. The court has subsequently had to threaten to hold government officials in contempt if they do not act on the court order.
Oposa in 1993 also won Oposa v. Factoran, a case in which young petitioners, all minors, asked the Department of Environment and Natural Resources to cancel all timber license agreements.
A trial court initially refused the case in order to uphold a constitutional provision on the non-impairment of contracts. But the High Tribunal said such agreements are merely licenses, not contracts, and as such could be revoked anytime.
The Supreme Court also gave weight to the fact that children have legal standing to ask the DENR secretary to protect forests for future generations. The High Tribunal ruled that the case should be resolved by the lower court.
Again, however, no timber license was cancelled after the celebrated court decision, as the case was not brought again to the trial court.
Despite the challenges of producing real change on the ground, Oposa hopes that he will be victorious again in his latest legal challenge.
"I would not have filed it if I did not expect it to be acted upon positively by the courts," he said.
CASE COULD TRIGGER OTHER SUITS
If the petition is granted, environmental groups say it will spark a number of cases which could propel government actions against climate change and environmental degradation.
The People's Network for Environment (PNE), for one, plans to ask the court to order the government to desist from approving mining projects.
PNE national coordinator Clemente Bautista said that mining has led to massive deforestation, destroying carbon sinks all over the country.
"We challenge the supreme court and the legislative bodies of the government to further strengthen the laws and rules that protect our environment and conserve our natural resources. (The court) must take another positive step by reviewing, reversing or junking laws that have been proven to be detrimental not only to our environment but to our people as well, such as the Mining Act of 1995," he said.
Antonio La Vina, a member of the Philippine climate change negotiating team, predicted that the writ of kalikasan "can be used against any major carbon dioxide producer."
Purple S. Romero is a researcher-writer with Newsbreak, a Philippines-based independent news organization.
Our Standards: The Thomson Reuters Trust Principles.
