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Republic of the Philippines SUPREME COURT

Manila City

PILAR CAÑEDA BRAGA, PETER TIU LAVIÑA, ANTONIO H. VERGARA, BENJIE T. BADAL, DIOSDADO ANGELO A. MAHIPUS, and SAMAL CITY RESORT OWNERS ASSOCIATION, INC. (SCROA),

Petitioners, - versus - SC-G.R. S.P. No._____________ Petition for Continuing Mandamus and

Writ of Kalikasan and With TEPO HON. JOSEPH EMILIO A. ABAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF TRANSPORT AND COMMUNICATION, DEPARTMENT OF TRANSPORTION AND COMMUNICATION (DOTC), PRE-QUALIFICATION, BIDS AND AWARDS COMMITTEE (PBAC), and PHILIPPINE PORTS AUTHORITY (PPA),

Respondents. x------------------------------------------------------------x

URGENT PETITION FOR WRIT OF CONTINUING MANDAMUS

AND/OR WRIT OF KALIKASAN AND WITH PRAYER FOR TEMPORARY ENVIRONMENTAL

PROTECTION ORDER (TEPO)

PETITIONERS, by counsel, and to this Honorable Court, respectfully aver:

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PREFATORY STATEMENT

The Port of Davao, Sasa Wharf (Sasa Port), is a government operated port terminal with a total area of 18.09 hectares that include commercial and operational areas. It handles “mainly containerized cargo, some general and break bulk cargo and small number of passengers” with a maximum handling capacity of 500,000 Twenty-Feet Equivalent Units (TEU) annually with the highest actual handled capacity in 2013 consisting of 407,000 TEU. It has a quay length of 1,093 meters, a berth depth of -11 meters, 4.15 hectares of container yard with 864 container yard ground slots, 0.2 hectares of reefer yard and 0.6 hectares for other storage.1 The Department of Transportation and Communications (DOTC) has invited bidders “to finance, design, construct, operate and maintain the Davao Sasa Port Modernization Project (“Project”). The Project consists of:

a) The expansion of the existing port and the establishment of dedicated container handling facilities with a design capacity of approximately 1.2 million TEU comprising among others the construction of a new apron, linear quay, expansion of back-up area, container yards, warehouses and the installation of new container handling equipment;

b) Operation and maintenance of the port for thirty (30) years.”2 The bidding for the Project is being carried out without the necessary Environmental Compliance Certificate and therefore, without the necessary studies on the environmental impacts of the proposed port expansion on the shores of Davao City as well as the famous tourism destinations in the Island Garden of Samal. Even the separate studies of the Philippine Port Authority (PPA)3 and the DOTC for the modernization and development of the Davao Sasa port do not contain the environmental impact assessment of their respective proposed projects. Moreover, the required consultation with affected communities and the approval of the concerned local government units have not been complied with and yet, the Project is already being bidded out and may be due to be awarded to private entities who, without the necessary consultations and the invaluable inputs of the stakeholders and therefore without the proper adjustments on the proposal for the Project, are wooed to pursue a government project whose true 1 See Davao Sasa Port Modernization Project Information Memorandum (“Information Memorandum”), April 2015; available at https://ppp.gov.ph/wp-content/uploads/2015/04/DSP-Info-Memo-15-April-2015-Final.pdf (last accessed 14 March 2016). A copy of the Information Memorandum is attached hereto as Annex “A”. 2 See Instructions to Prospective Bidders (“ITPB”) April 2015 Davao Sasa Modernization Project. A copy of the ITPB is attached hereto as Annex “B”. See also http://ppp.gov.ph/wp-content/uploads/2016/02/DSP-GBB-No-17-2016.pdf on Bid Submission scheduled on 28 March 2016; A copy of the General Bid Bulletin No. 17-2016 is attached as Annex “B-1”. 3 See Science & Vision For Technology, Inc., Consultancy Services For the Conduct of Feasibility Study and Implementation Plan For the Proposed Public-Private Partnership In the Management Operations & Development of the Port of Davao (Sasa) [“PPA Study”], Davao City, July 2012. A copy of the PPA Study is attached hereto as Annex “C”.

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and total cost – not just economics but social and environmental as well – is not being reflected in the proposed terms thereof. At present, the access roads leading to Sasa Port already suffers from severe traffic congestion, even in non-peak hours. The contemplated modernization and expected increase in TEU volume to come into the port will lead to even more severe traffic jams on land routes and possibly, in the sea. This will trigger a domino effect especially prejudicial to the surrounding businesses and affected residents of Davao City; it is a universally-accepted truth that port operations bring about, among other environmental concerns, pollution, noise pollution, an increased carbon trail and ultimately, health problems for the people, and serious damage in the surrounding land and marine ecosystems – not only in mainland Davao but likewise in the beautiful tourist destination of the Garden Island of Samal.

While the Court of Appeals has concurrent jurisdiction over a Petition for a writ of kalikasan and continuing mandamus, Petitioners respectfully submit that the proper court with which to file and to decide this Petition is the Honorable Supreme Court given the prayer for a temporary environmental protection order which, to all intents and purposes, is a restraining order applied for to halt what is otherwise a national government infrastructure project on environmental grounds. The urgency of the application for a temporary environmental protection order is made more manifest by the fact that Bid Submission is scheduled on 28 March 2016 and the award of the Project shall be made thereafter.

THE PARTIES

1. Following are the petitioners: 1.1 PILAR CAÑEDA BRAGA, a Filipino of legal age, is a former councilor of Davao City and one of the foremost oppositors of the proposed modernization project for Sasa Port. Petitioner Braga resides at No. 4 Governor Gregorio V. Caneda Road, Garcia Heights, Davao City. 1.2 PETER TIU LAVIÑA, fifty-eight (58) years old, is likewise a former city councilor of Davao City, also a fervent oppositor of the project. Like Braga, he represents the concerned citizens of Davao City against the award and implementation of the project for the potential environmental hazards the expected port congestion and traffic the modernization will bring. He has his residential address at Block 27, Lot 10, NHA Main Road, Bangkal, Davao City. 1.3 ANTONIO H. VERGARA, Filipino, of legal age and resident of Purok Niño, Upper Quidodo, Kaputian, District 3, Island Garden City of Samal, Davao del Norte. Petitioner Vergara is a Broadcaster, environmental and consumer rights advocate and a former Davao City Councilor. 1.4 BENJIE T. BADAL, twenty-five (25) years old, is the spokesperson of Kalipunan ng Damayang Mahihirap (KADAMAY), the largest alliance of urban poor organizations in the Philippines, which aims to eradicate poverty and promote a just, free and prosperous society. He may be served court processes at Barangay 26-C Lizada Street, Davao City.

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1.5 DIOSDADO ANGELO A. MAHIPUS is a city councilor of Davao City, likewise opposed to the proposed Sasa Port Modernization project. His residential address is Sto. Rosario Street, Buhangin, Davao City. 1.6 SAMAL CITY RESORT OWNERS ASSOCIATION (SCROA) is a corporation consisting of resort owners whose businesses are located on Samal Island. It is represented in this Petition by its President, Engr. Pastor Lozada, Jr.. The association is filing this suit out of genuine concern regarding the impact of the proposed modernization not just on their respective businesses, but also on the ecology and environment of Samal Island as a whole. It may be served court processes through Engr. Pastor Lozada, Jr. at Mahan Gardent Resort Co. Inc., Island Garden City, Samal Island, Davao Del Norte. 2. The following are the respondents: 2.1 HON. JOSEPH EMILIO A. ABAYA is impleaded as respondent in his capacity as Secretary of the Department of Transportation and Communication, as the DOTC is the leading government agency tasked with the proposed Sasa Port modernization project. He may be served with court processes at The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City, 1555, Metro Manila. 2.2 THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATION is impleaded as respondent as it is the government agency primarily responsible for the Sasa Port modernization project. It may likewise be served with court processes at The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City, 1555, Metro Manila. 2.3 THE PRE-QUALIFICTION, BIDS AND AWARDS COMMITTEE created under DOTC Special Order No. 2014-475 (issued on 16 December 2014)is impleaded primarily because it is responsible for the overview and compliance check of the prospective bidders joining in the project, and will eventually select the prospective concessionaire from such bidders. It may be served with court processes at Chairman’s Office, Unit 164, 16/F, The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City, 1555, Metro Manila. 2.4 THE PHILIPPINE PORTS AUTHORITY , aside from its being a co-proponent of Respondent DOTC, is likewise impleaded as it is the primary agency responsible for all ports and wharves in the country, and Sasa Port falls under its jurisdiction. It also has the primary responsibility for the port’s maintenance and upkeep. It may be served court processes at Bonifacio Drive, South Harbor Port Area, Manila.

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STATEMENT OF FACTS

1. The Aquino administration launched several Public-Private Partnership (PPP) projects to privatize and modernize several key infrastructure, industry and utility services in the nation. Among the most important infrastructure and utility services concerned in these projects is port improvement. 2. The Port of Davao, Sasa Wharf (Sasa Port), was first pegged down for privatization under the PPP scheme as early as 2011. 3. Sasa Port is one of the four (4) commercialized ports in the area; the three (3) others are Tefasco located toward the northern city limit of Davao City, Davao International Container Terminal (DICT) located in Panabo City, and Hijo Port (HIPS), located in Tagum City. There are also a number of private non-commercial ports that export their own banana and pineapple production. 4. Presently, much of the banana market exports are coursed through the above-mentioned ports as these ports are located nearer to the banana plantations in Davao del Norte and Compostela Valley. “The Davao region is the largest producer of bananas (Cavendish) in the country with 2.4million Metric Tons (“MT”) accounting for 57% of total Philippines production in 2013 and representing 78% of total banana exports of the Davao region (equivalent to 3.08million MT) in 2013.4 5. In 2012, the Philippine Ports Authority (PPA) conducted a feasibility study on the current condition of Sasa Port and its potential new targets in TEU (twenty-foot equivalent unit) volume increase and export increase in the event of an expansion of said port. This study was done by Science & Vision For Technology Inc., and was completed also in 2012. Under this report, the Sasa Port modernization project needs a total of THREE BILLION, FOUR HUNDRED NINETY-NINE AND FIVE HUNDRED TEN PESOS (P3,499,510,000.00) to enable the purchase of new equipment and installation of new facilities. The study also provided an itemized list of improvements and an estimated Port Development Costs table, as follows:

Minimum Proposed Equipments: 5 Ship to Shore Cranes 12 Rubber Tired Gantries (RTG) 20 Prime movers (inclusive of replacements) 9 Chassis 27 Forklifts (inclusive of replacements)

Additional Facilities: 20x115 meters Closed Storage Area Fuel Station/Maintenance Shop Equipment Shed

4 Information Memorandum, at p. 4.

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Facilities (in millions)

• Wharf Widening 931.000Php

• RTG Crane Runway 13.471

• Paving Blocks 35.323

• Concrete Pavement 6.895

• Buildings 119.375

• Yard Lightings and

Reefers 20.000

• Demolition and Minor

Works 10.000

• Land Acquisition 3.750

Total Cost of Works 1,139.814

General Expenses 22.796

Total Project Costs 1,162.610

Equipment

• Ship to Shore Cranes (x5) 1,500.000

• RTG Cranes (x12) 720.000

• Chasis (x9) 9.900

• Prime Movers (x20) 80.000

• Forklift Trucks (x27) 27.000

Total Cost of Equipment 2,336.900

Grand Total 3,499.510Php

Operators Office Building

6. The DOTC, however, commissioned another firm, Hamburg Port Consultants, to conduct a second feasibility study. This study was finished in 2013, and was used as one of the primary considerations for the current expansion project of Sasa Port. The study is contained in the Davao Sasa Port Modernization Project Information Memorandum (Information Memorandum) dated April 2015. It is of note that this second study does not provide any itemized table and only shows a whopping lump sum cost of the project amounting to EIGHTEEN BILLION PESOS (P18,000,000,000.00), or more than a shocking five times the cost projected in the previous study. Aside from a general proposed layout description and minimum proposed requirements, there is no itemized table unlike the PPA study mentioned in the preceding paragraph. 7. Under the DOTC commissioned study, it has been proposed that Sasa Port’s quay length be increased alongside its container yard size, container yard slots and recommended additional equipment such as two (2) to five (5) ship-to-shore cranes and seven (7) to fourteen (14) electric rubber tyred gantry, among others designed to meet the projected capacity of 1.2 million TEUs. 8. Statistics from the PPA5 show that the volumes handled by the Davao ports are decreasing, for both foreign and domestic vessels. Despite this general decreasing trend, Sasa Port still has the biggest volume of vessels and shipment handled6, followed by DICT7.

5 Philippine Ports Authority, available at http://www.ppa.com.ph (last accessed Feb 16, 2016). 6 Id. 7Id.

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9. As of 2014 PPA statistics8 it has been shown that majority of foreign container traffic has transferred to other ports, primarily DICT and the other private ports located in the area. 10. Sasa Port is located alongside the National Highway and the neighboring areas are highly urbanized. Yet, it only has an area of 18 hectares and currently has no provision for container yards. The situation today is that shippers and shipping lines still utilizing Sasa Port’s services line their own container areas in the national highway, and therefore contribute to the traffic congestion. 11. In the proposed expansion project, Sasa Port is expected to have a total additional area of 27.9 hectares. The linear quay length is to be extended by a minimum of 250 meters, and the current ground slots to be increased from 1,900 to 2,700 and an addition 3.6 hectares proposed to be reclaimed for an increased quay depth.9 12. The expansion is primarily targeted to direct banana exports to Sasa Port and entice more container traffic. If the modernization pushes forward, the winning bidder is guaranteed upto an 80% initial increase in tariff rates and escalation thereof every three (3) years thereafter. 13. On December 21, 2014 the Regional Development Council for Region XI issued Resolution no. 11810endorsing the expansion project. Pertinent in this resolution are the following ‘conditions’ before the project’s implementation, to wit:

a) Acquisition of additional 6.4 hectares of right-of-way per NEDA-ICC’s recommendation shall be secured immediately; b) Ensure that the appropriate compensation is paid for the private properties that will be acquired as additional right-of-way; c) Specify in the Terms of Reference (TOR) who will shoulder the payment of the Real Property Tax; d) Ensure the proper relocation/resettlement of informal settlers affected by the Project; and e) Ensure that in the implantation of the Project concerned parties shall benefit not only the private port operator but to include the port users in the form of better and affordable services, and, more importantly, opportunities for sustainable employment and entrepreneurial activities of the people of Davao Region resulting from the operations of the port.” (Emphasis supplied).

Informal settlers’ relocation was included precisely because there are about five thousand (5,000) families living within the port area that will need to be displaced by the modernization. 8Id. 9 Information Memorandum, at p. 27. 10 Resolution No. 118, Regional Development Council for Region XI, (December 21, 2014) a copy of which is attached as Annex “D”.

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14. On April 10, 2015 despite non-compliance with the requirements of the aforementioned resolution, the DOTC proceeded to issue the notice of public bidding on the project entitled “P17B Davao Sasa Port Modernization.”11 15. Also as of issuance of the notice of public bidding and even at present, the DOTC has yet to comply with the requirements of Section 27 of the 1991 Local Government Code (LGC), which mandates prior consultation and public hearings mentioned in Section 26 and prior approval of the project by the sanggunian concerned. In fact, the Davao City Council has passed by unanimous vote Resolution No. 02573-15 Series of 2015 dated 14 December 2015 entitled “Expressing the Objection of the Sangguniang Panlungsod of Davao on the Irregular Procedure as well as the Various Questions Raised Against the Sasa Port Modernization Project Now Being Bidded Out Without Prior Consultation and Expressed Approval of the Local Government as Provided for by the Local Government Code”.12 16. On August 28, 2015, various sectors represented by Tagum Agricultural Development Co., Inc. (TADECO), Davao International Container Terminal (DICT) and Pilipino Banana Growers and Exporters Association (PBGEA) sent a strongly-worded letter to Governor Rodolfo Del Rosario of Davao Province expressing concerns regarding the DOTC’s non-compliance with Resolution No. 118 previously issued by the Regional Development Council, among others. The letter enumerates irregularities plaguing the project, namely – the previously mentioned non-compliance with the LGC, the inexplicable conduct of the DOTC’s second feasibility study by a finance group instead of a ports specialist group and the omission of the potential of cruise tourism in the consideration of the project. The letter also stresses the fact that other ports nearer and more accessible to the banana markets exist and are operational, and question once again the DOTC’s insistence of converting Sasa Port into a cargo port for banana exports.13 17. This same letter also points out the existence of the P2.9 billion Viability Guarantee Fund (VGF), alleged to be a government guarantee. It also stresses the lack of transparency from the side of the DOTC. 18. Another important concern raised before Governor Del Rosario by the housing and subdivision development sectors represented by Maryline Lim, chairman of the Organization of Socialized Housing Developers Association of the Philippines (OSHDAP) and Kristin Lu, President of Subdivision Housing Developers Association (SHDA) is the Project’s intended conversion of the port into purely containerized commercial operation that will severely affect the housing sector since their materials are classified as bulk cargo or break bulk, which is not containerized. The same is true for other agricultural products being shipped at the Sasa port. If Sasa Port is converted into a purely container terminal, these shipments cannot anymore use the only public port in Davao

11 A copy of the Invitation to Pore-Qualify and Bid is attached hereto as Annex “E”. 12 An original copy of the resolution is attached hereto as Annex “F”. 13 A copy of the letter is attached as Annex “G”.

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City and may be refused or may not be readily accommodated by the private commercial ports in the region to their owners’ great damage and prejudice. 19. Another problematic area pointed out in the abovementioned letter was the purported increase in port charges and fees that would be allowed to the winning bidder of the project. 20. As of the filing of this petition, the DOTC also has yet to obtain an Environmental Compliance Certificate14 for the proposed project as required under Presidential Decree 1586.

GROUNDS FOR THE ISSUANCE OF A WRIT OF CONTINUING MANDAMUS

AND/OR THE WRIT OF KALIKASAN

I. THE DAVAO SASA PORT MODERNIZATION PROJECT THAT ENTAILS THE REHABILITATION, DEVELOPMENT, EXPANSION OF AND INCREASE IN THE PORT OPERATIONS AS IMPLEMENTED BY THE BIDDING PROCESS BEING CONDUCTED BY THE RESPONDENTS WILL VIOLATE THE RIGHT OF THE PETITIONERS AND THE FILIPINO PEOPLE TO HEALTH AND A BALANCED AND HEALTHFUL ECOLOGY AS ENSHRINED IN SECTIONS 15 AND 16 OF THE 1987 CONSTITUTION.

II. THE DAVAO SASA PORT MODERNIZATION PROJECT THAT ENTAILS THE REHABILITATION, DEVELOPMENT, EXPANSION OF AND INCREASE IN THE PORT OPERATIONS AS IMPLEMENTED BY THE BIDDING PROCESS BEING CONDUCTED BY THE RESPONDENTS IS VIOLATIVE OF THE PHILIPPINE ENVIRONMENTAL IMPACT STATEMENT SYSTEM AS THE RESPONDENTS FAILED TO UNDERGO THE NECESSARY ENVIRONMENTAL IMPACT ASSESSMENT PROCESS AND SECURE THE REQUIRED ENVIRONMENTAL COMPLIANCE CERTIFICATE.

14 Petitioners’ counsel has written a letter to the EMB for a written confirmation of earlier information received by its clients from the Regional Office that no ECC has been applied and issued for the Davao Sasa Port Modernization Project. EMB has yet to issue its reply.

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III. THE DAVAO SASA PORT MODERNIZATION PROJECT THAT ENTAILS THE REHABILITATION, DEVELOPMENT, EXPANSION OF AND INCREASE IN THE PORT OPERATIONS AS IMPLEMENTED BY THE BIDDING PROCESS BEING CONDUCTED BY THE RESPONDENTS IS VIOLATIVE OF SECTIONS 26 AND 27 OF THE LOCAL GOVERNMENT CODE OF 1991 AND THE RIGHT OF THE PETITIONERS AND THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN.

IV. THE CIRCUMSTANCES OF THIS CASE CALL FOR THE APPLICATION OF THE PRECAUTIONARY PRINCIPLE AND THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO).

DISCUSSION

Violation of the Right To Health and a Healthy and Balanced Ecology 21. Sections 15 and 16 of the 1987 Constitution provide that the people have a right to health and the right to a healthy and balanced ecology with the state being tasked with the affirmative duty to promote and advance such compelling state interests15. In compliance with such duty, the Supreme Court even promulgated its own set of rules on the procedure for environmental cases16. 22. Respondents on the other hand, instead of observing such duty, have begun the process of transgressing the Petitioners and the people’s right to health and a balanced ecology with the bidding process that they are undertaking and the consequent award and implementation of the proposed port expansion subject of this case. 23. In connection with port operations, a special study was made for the Organisation for Economic Cooperation and Development on the impacts of the operations of port cities. In The Competitiveness of Global Port-Cities: Synthesis Report (“Synthesis Report”)17, four major negative impacts were listed related to port activities. These are: 1) environmental impacts; 2) land use

15 See Leonen, J. Dissenting Opinion in International Service for the Acquisition of Agri-Biotech Applications, Inc. vs. Greenpeace Southeast Asia, Inc. (G.R. No. 209271; 8 December 2015) 16 The Rules of Procedure for Environmental Cases. 17 At http://www.oecd.org/gov/regional-policy/Competitiveness-of-Global-Port-Cities-Synthesis-Report.pdf (last accessed on 2 March 2016).

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impacts; 3) traffic impacts; and 4) other impacts.18 On the environment, the impacts “are within the field of air emissions, water quality, soil, waste, biodiversity, noise and other impacts. These environmental impacts can have severe consequences for the health of the population of the port-city, especially for the poorer parts of port-cities.”19 24. According to the Synthesis Report, most of these impacts are localized and affect the surrounding localities to wit:

2.2.5 Where do the negative impacts take place? Port impacts have generally become sub-urbanised, as many port sites have relocated from city centres. Port relocations and gradual spatial disintegration of ports and cities over time have taken place in many countries and have had a profound influence on port impacts. Remaining port functions near highly populated areas have become constrained by limited acceptance by the population of negative impacts. However, there is a large variety between port-cities. As ports are capital intensive, port relocations can in many cases not immediately take place and have in many cases been a gradual shift, through new terminal development away from city development. Several ports have thus developed on multiple sites, which adds a new layer of complexity in terms of disintegration of positive and negative impacts. Port lay out also is important, as the boundary of the port area with the city could be considered the area were most of the environmental impacts take place. If this boundary touches a large population concentration, the intensity of port impacts will evidently be larger. Finally, there is also a governance component to this discussion, when most of the impacts touch surrounding municipalities, which would imply a metropolitan or regional approach to these impacts. The effects of pollution, dust and noise are all very localised and most of the congestion costs occur close to the ports. Other regions are also subject to the negative impacts of the hinterland transport of port cargo to or from their region, but these effects are more diluted than the impacts in the port-city. Moreover, there is a large skewedness with respect to the negative impacts; large port-cities can be considered environmental hotspots. According to our estimates the largest 25 ports in the world account for around half of the shipping emissions in all ports in the world (Merk, 2012). So there is a large difference in negative port-city impacts depending on port size. Other environmental impacts from shipping are evidently global impacts, and many of these actually take place at sea, but these

18 At pp. 32-42. 19 At p. 32.

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impacts become particularly evident in port-cities.20 (Emphasis supplied)

25. In the Philippines, the Department of Environment and Natural Resources together with the Bureau of Fisheries and Aquatic Resources of the Department of Agriculture and the Department of Interior and Local Government, among others, have come up with its Managing Impacts of Development in the Coastal Zone (“Managing Impacts”)21 where it identified the effects of coastal construction and reclamation, including ports and offshore moorings.22 26. According to Managing Impacts, “Coastal construction has been the most widespread of activities affecting coastal resources”23 since “Any construction that modifies the shoreline will invariably change currents, wave action, tidal fluctuations, and the transport of sediments along the coast”24 while “Coastal construction that restricts the circulation of coastal water bodies can also degrade water qualify and coastal ecosystems.”25 27. Considering the Project involved in this case, all the foregoing environmental pollution and concerns will be affecting the petitioners and the people of Davao region if the bidding process and the Project’s implementation is not stopped. Violation of the Philippine Environmental Impact Statement System 28. Opposite the Davao City (Sasa) Port and separated by a narrow strait is the Island City of Samal which, like Boracay in Malay, Aklan, is a world famous tourist destination. As such, the effects on the said island of the port expansion and the increased shipping traffic cannot be ignored. Thus, the same pronouncement of the Supreme Court in Boracay Foundation, Inc. vs. Province of Aklan26, is applicable in this case to wit:

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a narrow strait. This becomes more imperative because of the significant contributions of Boracay’s white-sand beach to the country’s tourism trade, which requires respondent Province to proceed with utmost caution in implementing projects within its vicinity.

20 At pp. 42-43. 21 See http://oneocean.org/download/db_files/crmguidebook7.pdf (last accessed on 2 March 2016). 22 At pp. 41-45. 23 At p. 42. 24 At p. 43. 25 At p. 43. 26 G.R. No. 196870; 26 June 2012.

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29. With such well-established negative environmental effects of any port activity, the least that the Respondents could have done was to study the possible negative environmental impacts of the proposed port expansion project through an environmental impact assessment. 30. Respondent PPA has even seen the need therefor when it contracted the services of Science and Vision for Technology, Inc.27 for its own study on the “Conduct of Feasibility and Implementation Plan for the Proposed Public-Private Partnership in the Management, Operations and Development of the Port of Davao (Sasa), Davao City” when it charged said consultant with, among others, the following:

2.01.6 INITIAL ENVIRONMENTAL EXAMINATION 1. Undertake Initial Environmental Examination (IEE) of the impact of the proposed development, if any, under the PPP Program/Plan, to include but not limited to:

- Impact relating to the project location - Impact during construction - Impact during port operation

2. Such IEEs shall be undertaken in preparation, if and were warranted, for any recommended full-blown Environmental Impact Assessment (EIA) required under Philippine laws, policies, rules and regulations of the Department of Environment and Natural Resources (DENR) and other concerned government agencies. 3. The results of such IEEs shall be submitted together with the Draft Final Report.

31. Unfortunately, even the PPA Study does not contain the foregoing required initial environmental examination. 32. Moreover, when Respondent DOTC came up with its own study as contained in the Davao Sasa Port Modernization Project Information Memorandum, it appears that the environmental impacts of the proposed project were not assessed and no recommendations to mitigate the same were reported (at least from the dearth of materials available to Petitioners regarding the Project). There is nothing in the Information Memorandum that even deals with the environmental concerns that may be casued by or incidental to Project.

27 http://www.ppa.com.ph/bidding/head%20office/2012/12_0216%20Contract%20Davao%20SASA%20(H.O.).pdf (last accessed on 29 February 2016).

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33. Respondents have not likewise applied for and secured an Environmental Compliance Certificate (“ECC”) for the Project as required under the Philippine Environmental Impact Statement System (PEISS) under Presidential Decree No. 1586. The proposed port expansion with the capacity for containerized cargo being more than doubled as compared to current capacity and operations is certainly covered by the PEISS and is considered to be a project within an environmentally critical area. This is evident from the Revised Procedural Manual for DAO 2003-30 of the DENR which lists “sea port, causeways and harbors” under Group II which are Non-Environmentally Critical Projects in Environmentally Critical Areas.28 34. In Boracay Foundation, Inc. vs. Province of Aklan29, the DENR Regional Office involved in the said case admitted that a jetty port, being within a water body, is necessarily within an environmentally critical area, to wit:

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a water body. This was why respondent Province had faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares. (Emphasis supplied)

35. Given the foregoing, Respondents are required to go through the process of environmental impact assessment and secure an ECC. 36. Moreover, in the conduct of an EIA in connection with the application for an ECC, the proponent is required to determine whether there are viable alternatives30 to the proposed Project. In this case, there exist at least three (3) other commercial ports near the vicinity of the Davao Sasa Port aside from other non-commercial ports in the area. The commercial ports are (1) Tefasco located toward the northern city limit of Davao City; (2) Davao International Container Terminal located in Panabo City; and (3) Hijo International Port in Tagum City – all within an 80 kilometer radius from the downtown center of Davao City. These are described in the Information Memorandum as follows:

28 At p. 51. 29 G.R. No. 196870; 26 June 2012. 30 Section 4 (c) of Presidential Decree No. 1151.

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DICT is Mindanao region’s most up-to-date container terminal covering an area of 8.1 ha and furnished with modern terminal handling equipment. DICT has two ship-to-shore cranes, three reach stackers, five empty container handling equipment, 18 terminal tractors/prime movers and state-of-the-art Terminal Operations System (“TOS”). The terminal has an average draft of 15 meters that can accommodate Panamax vessels, as well as, reefer plug-in facilities to support the export of perishable items such as bananas. The project has been initiated by the Anflocor conglomerate. The terminal started operations in May 2013 and has handled around 228,000 TEUs in 2014 and is expected to achieve their annual target of 250 thousand TEUs in 2015. Hijo International Port (“HIP”) is located in the Davao Gulf, south of the city of Tagum. International Container Terminal Services Inc. (“ICTSI”) has announced plans to develop HIP and has acquired a 65% controlling stake in Hijo International Port Services, Inc. Resources Group, owner and developer of HIP. The port is intended to be developed into a modern large container terminal with 12 Panamax STS gantry cranes, 36 rubber tired gantries, a total berth length of 1,200 m and total terminal area of 50 ha in its final stage. The development will most likely be carried out in phases with Phase 1 to be completed by 2015.31

37. With the foregoing alternatives especially considering that most of the banana and fruit exports of the Davao region come from the north of Davao City where these two (2) alternative ports are located, the necessity and desirability of the expansion and modernization of the Davao Sasa Port is put into serious question. This is especially true given the trend in development global ports where:

Port impacts have generally become sub-urbanised, as many port sites have relocated from city centres.… Remaining port functions near highly populated areas have become constrained by limited acceptance by the population of negative impacts. However, there is a large variety between port-cities. As ports are capital intensive, port relocations can in many cases not immediately take place and have in many cases been a gradual shift, through new terminal development away from city development…32 (Emphasis supplied)

31 At p. 10. 32 Synthesis Report, at p. 42.

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Violation of the Right to Public Participation, Prior Approval and Right to Information on Matters of Public Concern 38. Aside from the failure to comply with the requirements under the PEISS, Respondents have also failed to comply with the requirements under Sections 26 and 27 of the Local Government Code of prior consultations and prior approval of the local government. 39. This doctrine has been clearly enunciated by the Honorable Court in the afore-mentioned case of Boracay Foundation, Inc. vs. Province of Aklan, to wit:

The Local Government Code establishes the duties of national government agencies in the maintenance of ecological balance, and requires them to secure prior public consultation and approval of local government units for the projects described therein. In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary for respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRA’s authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the one at bar. This project can be classified as a national project that affects the environmental and ecological balance of local communities, and is covered by the requirements found in the Local Government Code provisions that are quoted below:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact

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upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

In Lina, Jr. v. Paño, we held that Section 27 of the Local Government Code applies only to “national programs and/or projects which are to be implemented in a particular local community” and that it should be read in conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna. (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established that this project as described above falls under Section 26 because the commercial establishments to be built on phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel discharge. Our ruling in Province of Rizal v. Executive Secretary is instructive:

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We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical. Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the power to, among other things, “enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code.” These include: (1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)] (2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)] (3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, …providing for the establishment, maintenance, protection, and conservation of communal forests

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and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects …and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption, use or wastage of water.” [Section 447 (5)(i) & (vii)] Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal. (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required by law to have been conducted and secured by the respondent Province. Accordingly, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with this requirement under the Local Government Code. Had they been conducted properly, the prior public consultation should have considered the ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter. Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

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For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB. Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. The public hearing/consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this case, respondent Province had already filed its ECC application before it met with the local government units of Malay and Caticlan.

40. Precisely because of the failure to consult the affected communities and get the approval of the local sanggunian for the Project that, undoubtedly, will increase pollution in and near the locality and the surrounding environs, the Davao City Council was forced to issue its Resolution expressing it objection to the project on 14 December 2015. 41. The move of the Respondents to exclude public participation in the affected communities, including the Petitioners, denies the latter the opportunity to voice out the costs to their lives and to the environment of the Project that may not have been taken into consideration by the proponents in their valuation of the Project. These are legitimate concerns that, as pointed out by Justice Leonen, ought to be made part of the cost equation, to wit:

These provisions represent, in no small measure, a shift in the concept of governance in relation to society’s health. It is a recognition that if private actors and entities are left to themselves, they will pursuer motivations which may not be too advantageous to nutrition or able to reduce the risks of traditional and modern diseases. At best, the actors may not be aware of their incremental contributions to increasing risks. At worse, there may be conscious efforts to examine health consequences of products and processes introduced in the market. It is expedient

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for most to consider such costs as extraneous and affecting their final profit margins. In short, the constitutional provisions embed the idea that there is no invisible hand that guides participants in the economic market to move toward optimal social welfare in its broadest developmental sense. Producers, by their very nature, participate in the market motivated by their objective to recover costs and maximize their profits. Costs for them usually refer to their pecuniary expenditures. Costs suffered incidentally by the ecology of the locations of their factories or by the health of their consumers are not costs which producers readily and naturally internalize. In an unregulated market, they do not spend their capital to mitigate or remedy these types of damages. In many instances, there is the tendency even to avoid incurring expense to find out whether these types of damages actually occur. Environmental damage and health risks are, thus, externalities which are usually invisible to them. Externalities are costs which remain unrecognized in the private transaction between the producers and their consumers.33

42. Aside from the failure to conduct the necessary consultations and to secure the approval of the local government, Respondents are bent on keeping the whole bidding process secret such that instead of making the bidding public, it has imposed the rule of confidentiality and for such purpose has restricted internet access of the public to the documents and announcements with respect thereto. 43. Thus, Section 3.7 of the Instructions to Prospective Bidders state the rule on confidentiality thus:

3.7 Confidentiality The Invitation Documents provided by the DOTC and the PPA are being made available to Prospective Bidders only in connection with the Project and may not be disclosed or used other than for purposes of Bidding. Information relating to the examination, clarification, evaluation and comparison of Pre-Qualification Documents shall not be disclosed to any of the Prospective Bidders or other persons not officially involved in the Bidding Process; provided that the DOTC and the PPA, including the PBAC, shall not have the obligation to keep any information submitted by a Prospective Bidder confidential after award of the Project.

33 See Leonen, J. Dissenting Opinion in International Service for the Acquisition of Agri-Biotech Applications, Inc. vs. Greenpeace Southeast Asia, Inc. (G.R. No. 209271; 8 December 2015).

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44. On the other hand, when the links in Respondent DOTC’s website pertaining to the bidding for the Project are clicked, what appears on the screen is a notification that “You don’t have permission to access” the information represented by the link. Following are some of the samples:

Forbidden You don’t have permission to access/images/PPP/2015/P17BDavaoSasaPortMP/DavaoSasaGBB17-2016.pdf ;

Forbidden You don’t have permission to access/images/Public_Bidding/Memo-COMELEC_ProjectExemption.pdf on this server.

45. From the foregoing, not only have Respondents failed to consult the stakeholders, they are determined to exclude the public from accessing information and proceedings relating to the Project in violation of Petitioners’ right to information on matters of public concern – a right that is critical in their proper exercise of the right to public participation under Sections 26 of the Local Government Code. 46. Aside therefrom, the Regional Development Council of Region XI has imposed certain conditions in its approval of the Project among which are:

a) Acquisition of additional 6.2 hectares of right-of-way per NEDA-ICC’s recommendation shall be secured immediately; b) Ensure that appropriate compensation is paid for the private properties that will be acquired as additional right of way; c) Specify in the Terms of Reference (TOR) who will shoulder the payment of the Real Property Tax; d) Ensure the proper relocation/resettlement of informal settlers affected by the Project; and, e) Ensure that in the implementation of the Project concerned parties shall benefit not only the private operator but to include the port users in the form of better and affordable services, and, more importantly, opportunities for sustainable employment and entrepreneurial activities of the people of Davao Region resulting from the operations of the port.

47. It appears that the acquisition of the right of way and the relocation/resettlement of the informal settlers have not been complied with by the Respondents, and yet, they are already in the final stretch of the bidding process, and the award and implementation of the Project.

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Applicability of the Precautionary Principle and Necessity for the Issuance of the Temporary Environmental Protection Order (TEPO) 48. Given the inevitability of negative environmental impacts of the proposed expansion of the Davao Sasa port and its operations, Petitioners beseech the Honorable Court to apply the Precautionary Principle and issue a Temporary Environmental Protection Order (TEPO) against the bidding, award and implementation of the Project. 49. The principle finds application in this case especially since, aside from the target of 1.2 million TEU capacity “comprising among others the construction of a new apron, linear quay, expansion of the back-up area, container yards, warehouses and the installation of new container handling equipment”, Petitioners are completely without any information as to what, eventually, will be the actual design of the Project. Without the actual design, the effect of the expanded port as well as its accompanying operations will be difficult to predict especially with respect to the foreshores surrounding the Project. This thus brings about an uncertainty in the sense that the predictive purpose of the EIA process is defeated and mitigation measures become merely theoretical. 50. Nevertheless, there is no question that port operations, in this case, the proposed port expansion in the physical structures and in its traffic capacity, are certain to bring about serious and irreversible harm on the marine life and the foreshores that need to be mitigated. 51. In this case, the features necessary for the application of the precautionary principle are present. As enunciated by the Honorable Court in the case of International Service for the Acquisition of Agri-Biotech Applications, Inc. vs. Greenpeace Southeast Asia, Inc., the principle applies when:

Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases wherein scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. An application of the precautionary principle to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific consensus emerges.

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For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff – (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irrepleaceable; and (c) settings in which the harm that might result would be serious. When these features – uncertainty, the possibility of irreversible harm, and possibility of serious harm – coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest for a in which the precautionary principle may find applicability.

52. Given the foregoing and the fact that the Bid Submission is due on 28 March 2016 and the award may be made immediately after the opening of the bids, Petitioners respectfully submit that the issuance of a Temporary Environmental Protection Order (TEPO) and of a writ of Kalikasan upon the filing of this case are warranted.

PRAYER PREMISES CONSIDERED, Petitioners respectfully pray for the Honorable Court to: 1. Immediately upon filing of this case, to issue:

a) A Writ of Kalikasan directing the Respondents to submit their Answer to the Petition within ten (10) days from receipt thereof; and b) A Temporary Environmental Protection Order (TEPO) directing the Respondents to Cease and Desist from Implementing the Project including the bidding and award thereof.

2. Upon trial on the merits, to render judgment converting the TEPO into a Writ of Continuing Mandamus ordering the Respondents to comply with the mandatory provisions of the law under the Philippine Environmental Impact Statement System and Sections 26 and 27 of the Local Government Code of 1991. Petitioners pray for such other reliefs as are just and equitable under the premises. Makati City for Manila …

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… 14 March 2016.

ROQUE & BUTUYAN LAW OFFICES Counsel for Petitioners

Unit 1904, Antel 2000 Corporate Center 121 Valero Street, Salcedo Village

1200 Makati City Email: mail@roquebutuyan.com Tel. Nos. 887-4445 / 887-3894

Fax No: 887-3893

By:

H. HARRY L. ROQUE, JR. Roll No. 36976

PTR No. 5334537| Jan. 11, 2016 | Makati IBP No. 01749 | Lifetime

MCLE Exemption No.IV-000513 | Feb. 15, 2013

JOEL RUIZ BUTUYAN Roll No. 36911

PTR No. 5334536 | Jan. 11, 2016 | Makati IBP No. 01742 | Lifetime

MCLE Compliance No. V-0013082 / Jan. 12, 2016

ROGER R. RAYEL Roll No. 44106

PTR No. 2208483/ Jan. 7, 2016 – Quezon City IBP No. 02159 / Lifetime

MCLE Compliance No.IV-017519 / Apr. 19, 2013

EXPLANATION A copy of the foregoing petition was served by registered mail to the respondents due to time, distance and manpower constraints.

ROGER R. RAYEL

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Copy furnished: OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo Street, Legaspi Village Makati City HON. JOSEPH EMILIO A. ABAYA The Columbia Tower, Ortigas Avenue Barangay Wack-Wack, Mandaluyong City 1555 Metro Manila. THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATION The Columbia Tower, Ortigas Avenue Barangay Wack-Wack, Mandaluyong City 1555 Metro Manila. THE PRE-QUALIFICTION, BIDS AND AWARDS COMMITTEE Chairman’s Office, Unit 164, 16/F, The Columbia Tower Ortigas Avenue, Barangay Wack-Wack Mandaluyong City, 1555 Metro Manila THE PHILIPPINE PORTS AUTHORITY Bonifacio Drive, South Harbor Port Area Manila City