Title
Braga vs. Abaya
Case
G.R. No. 223076
Decision Date
Sep 13, 2016
The Supreme Court denied a petition challenging the Sasa Wharf modernization project, ruling it premature as no proponent was identified to fulfill environmental and consultation requirements. Petitioners failed to prove environmental harm warranting writs.

Case Summary (G.R. No. 179452)

Applicable Law and Framework

The dispute concerns compliance with:

  • Presidential Decree No. 1586 (P.D. 1586), establishing the Environmental Impact Statement (EIS) System and Environmental Compliance Certificate (ECC) requirement.
  • Presidential Decree No. 1151 (P.D. 1151), the Philippine Environmental Policy mandating Environmental Impact Statements (EIS).
  • Sections 26 and 27 of Republic Act No. 7160 or the Local Government Code (LGC) of 1991, requiring local consultations and prior sanggunian (local legislative body) approval before project implementation.

Factual Background

The Port of Davao, particularly the Sasa Wharf located in Barangay Sasa, Davao City, was slated for modernization and privatization under the PPP framework starting in 2011. Two feasibility studies were conducted: one by Science & Vision For Technology, Inc. commissioned by PPA (2012) estimating the project cost at approximately PHP 3.5 billion for new equipment and facilities; the other by Hamburg Port Consultants for DOTC (2013) projecting a PHP 18 billion cost and requiring an expansion of 27.9 hectares. The latter study guided the ongoing expansion project.

The Regional Development Council XI endorsed the project in December 2014, imposing conditions prior to project implementation, including acquisition of additional right of way, compensation to property owners, resettlement of informal settlers, and ensuring project benefits to users and the community. In April 2015, DOTC invited bids for the project.

Petitioners’ Allegations

In March 2016, the petitioners filed an Urgent Petition for writs of Continuing Mandamus and Kalikasan, asserting:

  1. DOTC issued the public bidding notice without complying with the Council's resolution conditions.
  2. Absence of prior consultation and public hearings, and lack of sanggunian approval, violating the LGC.
  3. The local sanggunian had passed a resolution opposing the project due to noncompliance with LGC requirements.
  4. The project lacked the required ECC under P.D. 1586 and did not conduct an EIS.

The petitioners contended the project would significantly impact the environment and that proceeding with bidding violated their constitutional right to a healthy and balanced ecology. They sought to restrain the project’s bidding and award until compliance with ECC and local consultation requirements.

Respondents’ Arguments

Through the Office of the Solicitor General, respondents argued:

  • The petition was premature as the project remained at the bidding stage without an identified proponent obliged to initiate the EIA process or apply for the ECC.
  • Environmental Impact Assessment (EIA) and ECC application can only be undertaken after the bidding process concludes and a proponent is selected.
  • Local consultation and obtaining sanggunian approval were premature since project implementation details were not yet fixed.
  • Allegations failed to merit the writ of kalikasan because environmental damage threatening multiple localities was not demonstrated.

Legal Analysis: Environmental Impact Assessment System

P.D. 1151 (1977) and P.D. 1586 (1978) establish the EIS System requiring all government agencies, instrumentalities including Government-Owned or -Controlled Corporations (GOCCs), and private entities, to prepare and file comprehensive Environmental Impact Statements for projects significantly affecting the environment, and to secure an ECC prior to implementation.

The system includes:

  • Full disclosure of relevant environmental information by project proponents.
  • Technical and social review by the Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR).
  • Public participation to ensure social acceptability of the project.
  • Issuance of an ECC certifying compliance with environmental safeguards and commitments.

The Role of the Proponent in PPP Projects

The proponent, the entity responsible for preparing and filing the EIS and applying for the ECC, is typically the natural or juridical person intending to implement the project. Under Republic Act No. 6957, as amended by RA 7718 (the Build-Operate-Transfer or BOT Law), the proponent in a PPP project is the private sector entity that holds contractual responsibility for the project.

Because the Sasa Wharf project’s bidding process had not concluded at the time of the petition, there was no identified proponent responsible for EIA and ECC compliance. Consequently, compelling the respondents (government agencies) to submit an EIS or secure an ECC was premature and misplaced, as the legal obligation shifts to the private proponent after contract award.

Applicability of the Local Government Code Consultation Requirements

Sections 26 and 27 of the LGC mandate that national government agencies or GOCCs must conduct consultations with local government units (LGUs) and other stakeholders and obtain prior approval from the sanggunian before implementing projects with potential ecological impacts. While the issuance of an ECC is a separate requirement, it does not exempt compliance with the LGC.

The DOTC, as the national government agency authorizing and involved in planning, bears the responsibility for conducting consultations and securing local approval. Though the agency may implement these duties through the eventual project proponent, the legal duty remains with the government agency. However, since project implementation had not commenced, as per the BOT Law’s procedural stages, compliance with consultation and approval requirements before implementation was not yet due, rendering claims of non-compliance premature.

Commencement of Project Implementation under BOT Law

Implementation begins after:

  1. Award and execution of the contract between the government agency and the winning bidder (proponent).
  2. Issuance of "Notice to Commence Implementation" by the agency.
  3. Completion and approval of detailed engineering designs and plans incorporating bid specifications.
  4. Signing of the finalized contract incorporating such plans.

At the time of the petition, the Sasa Wharf project was still in the bidding phase, far from the construction (implementation) stage. Hence, requirements tied to implementation, including consultation and securing ECC, were not yet triggered.

Writ of Continuing Mandamus and Writ of Kalikasan

The writ of continuing mandamus compels government agencies

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