Issues, concerns, and challenges in environmental adjucation in the philippine court system Essay Example for Free

Issues, concerns, and ch anyenges in environmental adjucation in the Filipino lawcourt dodge EssayIntroduction The court system is an integral part of environmental enforcement in the Philippines and has made galore(postnominal) key contri just nowions to the field. However, environmental fortunes do not always progress smoothly finished and through the judicial system. This composition is narrowed to identify important level-headed issues in the judicial system that shanghai or limit environmental adjudication. 2 The issues atomic number 18 divided betwixt access to and competency of justice, and effectual procedures. bit many of these issues could be analyzed further, this newsprint entrust advancedlight the 1s to which attention should be net profit in any to a greater extent(prenominal) comprehensive study of Philippine environmental case constabulary. 3 This paper entrust also practice examples and case studies from the United States to illustrate impo rtant legal points, since the U. S. and Philippines realise comparable legal systems. II. Issues A. Legal Procedure and Rules of the hail Because of their unique and complex record, environmental cases be just about measures hindered by legal mechanisms and disc overs of procedure designed for non-environmental cases.These include rules on standing and yr deed suits that ofttimes do not take into account the fact that environmental damage impacts e very(prenominal) last(predicate) citizens. Further more(prenominal), the nature and science of environmental violations often instrument that statute(predicate)s of limitations, evidentiary rules, and burdens of proof are not suitable. Some of these issues can be appreciationd intern wholey by the judicial system by instructing lower courts to apply rules liberally. The impact of all of these issues, and how many really present problems for plaintiffs, is crucial. 1.Standing of Plaintiffs and Citizens Suits In environmenta l cases, a plaintiff may not necessarily be legally injure in the traditional sense by an act of environ-mental destruction to impair his livelihood. For example, plaintiffs cannot find damages for fish killed by contamination because they lose standing, in spite of the obvious economic loss they suffered. 4 While the destruction of natural aesthetic beauty is a moral outrage that indirectly harms all citizens, down the stairs traditional legal standing person no would corroborate standing to sue.5 Furthermore, environmental fairnesss are designed to pr compensatet catastrophic harm that is often not imminent or check offed to one geographic area, as opposed to the fix, immediate harms that provide the basis of some standing requirements. 6 morose rulings on standing could stifle environmental enforcement, e sparely since the Philippines lacks sufficient enforcement capacity and personnel. The Philippine Supreme motor hotel has held that standing requiresSuch personal s take in the outcome of the controversy as to assure that cover adverseness which sharpens the presentation of issues upon which the court depends for illumination of knockout constitutional questions. 7 The plaintiff himself moldiness(prenominal) build some cognizable and redressable soil. Litigating for a general familiar interest, or mere invocation of plaintiffs duty to preserve the rule of police force is not sufficient to clothe it with standing. 8 However, the standing requirement is considered a technicality that courts may waive if the case concerns a paramount public interest.9 In its dictum in Oposa v. Factorum, the apostrophize said that children mightiness even hold up intergenerational standing to sue to prevent the destruction of forests for early generations. 10 There are questions as to the strength of these to melt off the standing threshold for environmental plaintiffs. While courts may waive technical standing purvey when a case deals with a paramoun t public interest, it is not required to do so. 11 Furthermore, adjudicate may reasonably differ on what constitutes a paramount public interest since in that respect is no overridingtheme o de attractive it. For example, in Kilosbayan, the Court constitute that determining the legality of an online lottery system fell inside this definition, whereas in coordinated Bar, it held that determining whether deploying marines for crime deterrence violates the Constitution does not. 12 The Court did slim down some of this ambiguity in Oposa by declaring that the right to a balanced and healthful ecology concerns nothing less than self-preservation and self-perpetuation, presumably a paramount public interest.13 However, because the Courts discussion on standing in Oposa was dictum, uncomplete this claim nor the right to intergenerational standing is binding law upon the lower courts. 14 Without further guidance from the Court, it is belike that many lower court decide would be lo th to act boldly by declaring that a particular issue is a paramount public interest and would deny standing. sex act tried to reduce the standing threshold with citizen suit provisions in environmental statutes, but these guard been of limited use thus far.First, only the Philippine Clean Air and ecological Solid Waste Management Acts contain citizen suit provisions15 notably, the Philippine Clean Water Act, enacted after these two laws, does not. 16 Second, citizens however bear the risk of paying a winning defendants attorneys fees, which could be represently enough to discourage even valid suits. Most importantly, these suits are still subject to the echt controversy requirement of the Constitution. 17 What this means in the context of citizen suits has not yet been heavily litigated in the Philippines.However, lower court judges often require plaintiffs to show actual injury in the narrow or traditional legal sense. 18 Likewise, when prosecutors deputize citizens to enfor ce a suit, judges sometimes put forward that much(prenominal) deputization is only valid for a single case or even invalid chthonic the Rules of the Court. 19 As a result, citizens suit provisions imbibe been largely unused. 20 Standing under environmental laws is hotly contested in the U. S. 21 The U. S. has put citizens suit provisions into almost all of its environmental laws.22 Plaintiffs are required to show 1) an injury in fact, 2) causation between the injury and the defendants actions, and 3) redressability in court. 23 NGOs can sue upon a showing that any of their members would have had standing to sue. 24 The focus is not on the injury to the environment, but rather the injury to the plaintiff or NGO representing him. However, the injury can be economic or non-pecuniary, including aesthetic or unskilled value. 25 The Court also held that civil penalties payable to the U. S. Treasury serve as redress as they deter polluters.26 Causation is often the more difficult elem ent to sanction, which go out be discussed at a lower place in 4. In New Zealand, the Environment Court has interpreted a more radical approach. It has eliminated positive standing provisions, requiring only that a plaintiff have a greater interest than the public largely in a controversy or that he represents a relevant public interest. 27 This makes citizen enforcement very easy. However, one might also be concerned about whether this would overburden the court granting standing is a fine balance between permitting valid environmental claims and risking frivolous judicial proceeding.2. curriculum Actions and Large Number of Plaintiffs As the notorious mudslide at Ormoc in 1991 and Marcopper mine tailings in Marinduque show, injuries from environmental damage can be grave, costly, and relate a huge number of persons. 28 Even in less publicized events, the number of injured persons may often make individual litigation burdensome and complex. Furthermore, some members of an i njured syllabus may be too poor to prosecute their claims individually. Class action suits can help litigation of such situations by providing forThe protection of the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims. 29 Other studies have shown that single out action suits can provide important social benefits and encourage citizen enforcement to supplement agency regulation. 30 Class actions may the discourage attorney disloyalty that encourages lawyers to plea bargain for less than the actual injury.As happened in the Chinese poachers case in Palawan, lawyers or prosecutors may not seek full compensation for the damage caused because they have an incentive to expend less time and funds on a small case. 31 However, because class actions provide aggregate incentives for lawyers, and fees and settlements undergo higher judicial scrutiny, such disloyal settlements are less apparent to occur. 32 While the Philippine Rules of the Court provide for class action suits,33 judges will sometimes be reluctant to avow classes and instead carry on the injuries of plaintiffs as separate, despite any common questions of law or fact.In Newsweek, Inc. v. IAC, the Supreme Court ruled that a defamatory remark directed at 8,500 sugar planters do not necessarily apply to every individual in a group, and thence are not actionable as a class action. 34 Likewise, a judge might refuse to certify a class of pollution victims because they suffer different types of physical injuries, even if the author was the same pollution. In a more litigated legal system, there would be more case law to guide judges on the appropriateness of class actions.However, in the Philippines, this does not yet exist. Add to this the high cost for lawyers, and class actions be come even less feasible for most Philippine plaintiffs. 35 In the U. S. , it is much easier to litigate environmental class action suits. The Supreme Court has clearly instructed courts to construe its class action rules liberally and encourage class action suits. 36 This limits judicial discretion in refusing to certify classes to only extreme situations. Furthermore, the rules allow plaintiffs to join by de accuse rather than affirmatively.37 For environmental cases, the courts will look at the potential number of plaintiffs or the size of the estimated areas that a pollutant has infected to see if plaintiffs have met the numerosity requirement, but they are not required to meet a certain minimum number. 38 For the Philippines, which, unlike the U. S. , has too few environmental class action suits, adopting some of these mechanisms may create a more efficient adjudication process for plaintiffs, defendants, and the courts. 3. Statute of Limitations and Delayed InjuriesUnlike a tra ditional tort or crime, many environmental injuries are not discrete events but only manifest themselves after many age. Pollutants may build up in soils, waters, or human bodies for years without r all(prenominal)ing a serious level. Cleanup of such sites can take even longer. For example, when the U. S. military leave Subic Bay in 1992, it left behind hazardous waste sites with contaminated water that continue to poison the land over a decade later. 39 However, for environmental torts, the statute of limitations is four years, a relatively brief time.This could preclude the litigation of injuries from pollutants with an onset delayed for many years. Thus far statutes of limitation issues have not been a material factor in environmental litigation. The Philippine Supreme Court addresses similar problems in other field of law with the discovery rule, allowing the statute of limitations to run when the plaintiff actually or should reasonably have spy the injury. 40 However, as t he courts handle more brown environment cases, it will have to address the tensions between punishing past violators and protecting defendants from time-barred claims.41 U. S. courts have adopted the due diligence discovery rule, in particular for Clean Water Act and wetlands violations. Because immediate detection of pollution or illegal fill into a wetlands is almost infeasible, applying a statute of limitations strictly would defeat the remedial purpose of the act. 42 Courts give to rear the Congressional purpose of the statute with the due diligence discovery rule and giving the judicature a chance to file action against the polluter once the violation is reported to the EPA.43 Some courts44 stimulate that a statute of limitation may be inappropriate for cases when pollution continues to cause problems over time. These courts solicit that a Defendants unpermitted discharge of dredged or fill materials into wetlands on the site is a continuing violation for as long as the fill remains. Accordingly, the five-year statute of limitations has not yet begun to run. 45 The statute of limitation will not run for as long as the pollution remains.Many courts will also treat common law tort nuisances as continuing violations. 46 This approach has the added benefit of allowing the government to fine violators for each day the pollution remains, capturing the more of the costs of environmental destruction. 47 Much of U. S. case law regarding the effect of statutes of limitations on environmental issues comes from ambiguities in the statute of limitation for complex processes, specially the Comprehensive environmental Response, Compensation and Liability Act (CERCLA), or Superfund law.48 Because Congress anticipated the complexity and long-term nature of site cleanups, it structured the statute of limitations in a flexible manner, allowing the court hear an initial cost recovery action prior to issuing a declaratory judgment to avoid letting the statute run. It also allows the plaintiff to file subsequent cost-recovery actions to recapture further response costs incurred at the site. 49 However, the laws different statutes of limitation for remedial and removal actions phases of the cleanup has led to confusion over how the phases are defined.Courts often defer to EPA determinations in characterizing the type of action due to its technical expertise, rather than make that judgment itself. 50 4. Meeting the Burden of Proof In environmental cases, there may be no line of direct evidence from the perpetrator to the harm. In pollution cases it is often im practicable to prove that the plaintiffs harm was caused by his exposure to the toxic material. 51 For example, if several factories dump pollution into capital of the Philippines Bay, it is impossible to determine which caused a particular environmental harm.Furthermore, the courts cannot expect absolute scientific proof on the effects of a health risk such as electro-magnetic fields fro m advocate cables. 52 Given these problems, the traditional burden of proof standards, preponderance for civil cases and beyond a reasonable distrust for criminal,53 may prove to be prohibitively high. Philippine courts employ liability-shifting mechanisms to manage this difficulty in environmental cases. For example, pursuant to the Fisheries Code, courts use reverse burden of proof to place the burden of exculpation on defendants found with high-explosive or cyanide fishing gear.54 Furthermore, the courts have begun to experiment with the precautionary principle, placing the constitutional rights to health and rubber above development. 55 The courts also employs res ipsa loquitor in tort suits,56 although this has not been a prominent sign of environmental litigation. Plaintiffs may also hold multiple defendants jointly and severally liable for an act of environmental destruction that cannot be traced to a single defendant company, such as the pollution in Manila Bay. 57Until recently, Philippine lawmakers did not see a look at to introduce a strict liability58 regime into environmental laws. 59 Strict liability was employed in other fields, but not environ-mental laws. more than recent anti-pollution laws such as the Clean Air and Solid Waste Management Acts establish that a violation of the standard is actionable through citizen suits. 60 In U. S. , because of its common law tradition, courts are more willing to employ strict liability. Generally, when a defendant, though without fault, has engaged in a perilous activity , there is no justification for relieving it of liability.61 Such perilous activities include operating explosives, nuclear energy, hydropower, fire, high-energy explosives, poisons, and other extremely hazardous materials. 62 For citizens suits under environmental statutes, plaintiffs need only show that the law was violated, not prove fault or any actual or threatened harm, without regard to mens rea. 63 When it is impossible to d etermine the proportion of fault of a large number of defendants, U. S. courts may approximate fault through other indicators, including market share and production output. For example, in Hymowitz v. Eli Lilly Co., the New York Court of Appeals calculated the size of each defendant drug companys market share for DES to determine their fault in the injuries caused by the drug. 64 This also allows courts to address injuries sustained in the past by approximating past fault through data available in the present. The Environment Court in New Zealand has adopted an even more radical approach and through away with formal burdens of proof. It focuses instead on obtaining the best possible evidence for a case. This makes it easier for plaintiffs appealing to the court to dis reside an unfavorable opinion from a lower court.65 While the Philippine Supreme Court may not wish to go this far, the court could more strict liability for hazardous materials and market share liability tools. 5. Da mages and Remedies Even if a plaintiff wins damages from a defendant, if the defendant keeps polluting or cutting trees, the damage will continue. 66 In the Philippines, this is particularly problematic as the fines and penalties imposed under law are often not enough to variety show a companys behavior. In order to encourage development, Congress prohibited temporary restraining orders against government projects.67 Since government infrastructure projects can cause massive damage to ecosystems, this prohibition is significant. Some courts try to avoid this loophole by claiming that the prohibition cannot violate a persons constitutional right to health or safety. 68 The extent of this loophole is unclear. Finally, even if a plaintiff or prosecution wins its case, most of the time the true costs of the defendants actions will not be reflected in the award. Damages in civil cases and punishments in criminal cases generally capture the costs of any suffering caused to macrocosm, no t animals or plants.While some settlements may include forcing a defendant to install pollution-control equipment or contribute money to conservation programs, this still likely does not recoup the full extent of damage to the environment. It is difficult to reconstruct natural forest, coral reefs, or populations of endangered animals. The judicial system does not have much power to remedy this problem. The decision on the purpose of environmental laws and how much plaintiffs recover is for the Congress. However, it is important for judges to get word that environmental cases deal with only a fraction of the true costs of environmental damage.This may influence some judges to be more sympathetic toward environmental cases. While punishments for defendants may seem exorbitant, savvy the unaccounted costs of environmental damage puts these into perspective. B. Access to and Competency of Justice Aside from the legal issues described above, in any country, there are a host of pract ical and logistical issues that impede the judicial systems ability to handle environmental cases. This includes the lack of financial resources of plaintiffs, particularly in poorer parts of the Philippines.Plaintiffs and their lawyers must(prenominal) also feel safe from physical and financial harassment while litigating their case. On the other hand, two courts and lawyers are often unfamiliar with environmental laws and science, limiting their ability to adjudicate in the field. Finally, court dockets are often congested, and environmental cases are not given priority. The judicial systems role in addressing these issues ranges from fairly touch ond to almost no role. Yet, in attempting to picture environmental adjudication in the Philippines, it is crucial to bed the role these practical realities play.1. Financial Costs of Adjudication In any legal system, register and litigating a case takes an enormous amount of time and money. Philippine courts impose a filing and tr anscript fee, although these are waived for citizens suits. Reflecting on his experiences, famous environmental attorney Antonio Oposa suggested that these costs were the greatest inhibitions for most plaintiffs. 69 Furthermore, for injunctive remedies, plaintiffs must post a bond to cover the defendants potential damages, which may be too large for a poor plaintiff with livestock and property as his only assets.70 Most Philippine lawyers do not use a contingency fee system, so plaintiffs must be able to pay for legal services up front and over the lengthy litigation process. 71 On go by of this, there is the risk of financially crushing harassment suits from defendants, or Strategic Lawsuit Against Public partnership (SLAPP). Even the logistics of feeding and housing witnesses, and their lost time from act as, poses significant problems for predominantly poorer plaintiffs. In the U. S. , NGOs often ask over enough donations to allow them to engage in litigation and have staff l awyers. More importantly, plaintiffs attorneysoften work on a contingency basis, allowing poorer plaintiffs to avoid large financial risk. Furthermore, NGOs and environmental groups seeking injunctive remedies are often required only to pay a nominal bond or may be exempted completely. 72 While some might worry this makes litigation in the U. S. too easy, it drastically improves poor batchs access to justice. Pursuant to the Constitutions emphasis on the poor, the Supreme Court of the Philippines has taken some efforts to alleviate this problem. Poorer plaintiffs are exempted from paying docket, transcript, and other fees and are granted free legal counsel.Furthermore, the Court provides an annual grant to the Integrated Bar of the Philippines Free Legal Aid Program. 73 However, not all environmental plaintiffs qualify as poor, particularly NGOs, even though they often have limited financial resources. Furthermore, even though the amount of the bond is under the discretion of the j udge, judges are reluctant to do this because they worry about being accused of abusing their discretion. 74 2. Harassment of Plaintiffs and Lawyers Because of the high stakes involved in environmental cases, defendants may go to extraordinary means to intimidate and harass plaintiffs and their lawyers.It is not funny for defendants to lodge harassment or SLAPP suits against environmental plaintiffs or DENR prosecutors to attempt to force them to drop their charges. 75 Enforcers who confiscate the equipment of criminals are often sued for robbery. 76 Some defendants take even more extreme means such as physical violence or even murder. 77 Such dangers were recently illustrated by the murder of environmental advocate Elpidio de la Victoria and death threats against attorney Oposa. 78 This makes lawyers unwilling to take on difficult environmental cases.To stifle SLAPP suits, the courts should promptly apply the anti-SLAPP provisions in the Philippine Clean Air and Ecological Solid Waste Management Acts when applicable. 79 This means banishing any harassment suits as quickly as possible. However, plaintiffs relying on other laws have less protection. 80 Congress must expand the use of anti-SLAPP provisions to other environmental laws. Furthermore, law enforcement must vigorously prosecute any defendants who resort to violence. In short, to facilitate environmental cases, the court must protect the ones bringing the cases. 3.Technical Knowledge Among Judges and Attorneys Judges must decide questions of science as well as law in order to dispose of most environmental cases. This is particularly true for brown issues, which involve uncertain science regarding the exact effects of a pollutant. In the U. S. , scientific understanding of pollutants led to new classes of trespass and tort suits that held emitters liable for their actions. 81 However, both sides in a case will try to use any scientific uncertainty to their advantage, or even create scientific uncerta inty even when it does not exist in order to throw the court.Judges must understand what scientific evidence should be admitted and what is not valid. 82 Judges and lawyers need to understand the science well enough to determine which arguments are unfounded and which are plausible. Because general the courts have general jurisdiction and are not specialized in environmental issues, this problem will have to be addressed by providing judges and lawyers with supplemental training in environmental sciences and law. PHILJA and other organizations are already successfully doing this. 83 Eventually, however, this problem may be resolved through a channel in the adjudication system.If the Philippines cans toward environmental courts or administrative adjudication84 (as is being considered), judges would be trained specifically to handle environmental cases. 4. Obtaining and Preserving Evidence For green issues, preserving evidence may be difficult. After an illegal logger or fisher is captured, DENR can confiscate the logs and fish. These goods rot or deteriorate over time. Proper procedure requires fetching pictures of the logs and fish for admission into court. Specially trained fish examiners prepare reports on the cause of death of fish.When done correctly, this preserves the evidence for use at court. However, some areas may not have fish examiners on hand or the prosecution may not properly prepare the pictures for admissible evidence. It is not uncommon for custodians of the confiscated items to lose track of them over time. Because cases take so long in the court system, this can be a real problem. 85 It is also difficult for enforcement agents to find and confiscate the equipment and vehicles used in environmental crimes, as the boats and trucks perpetrators use are highly mobile.Despite the inconvenience it may cause defendants, such equipment must be held as evidence and to prevent further environmental damage. The accused, or unindicted conspirators, will often call for for the release of their equipment. 86 Unfortunately, sympathetic lower court judges may sometimes grant these requests, despite the contravening case law. 87 Moreover, prosecutors must have the vehicles stored in a safe area despite the lack of storage space. Finally, it is important for enforcers to determine the location of violators, particularly close to the boundaries of natural parks.Community enforcers may not be trained in determining the exact location of where they apprehended the violators. Wealthier units can use GPS, but often the location of apprehension is disputed. 88 Any doubt in this area can subvert the prosecutions case. 5. Docket Congestion In many countries, including the Philippines, courts are overburdened with cases. Yet, the Philippines forests and animals are already disappearing quickly. Irreversible damage to ecosystems can occur much more quickly than the many years it may take the court system to resolve a case. As Prof.La Vina noted, the environment cannot gestate for the court system. 89 According to Justice Nazario, the Philippines needs over 300 trial court judges to fill the vacancies and resolve pending cases. 90 Low pay discourages the few who are qualified. Many of these vacancies are in remote parts of the country, such as Nueva Ecija, Occidental Mindoro, and Surigao Norte, where much of the fishing and forestry violations occur. Furthermore, the Supreme Court is burdened by the large amount of cases granted review each year, including the automatic review for death penalty cases. 91Given this burdensome congestion, environmental cases are not given any special treatment on their own merits. Criminal environmental cases may be somewhat more pelt alongd because they involve criminal punishments, but most judges and lawyers show no urgency with regard to environmental cases. 92 The Supreme Court attempted to alleviate this problem with Administrative Order No. 150B-93, setting up special courts to handle illegal logging, but these remain underutilized. 93 Until cases can move through the court system more quickly, the enforcement of environmental law will be delayed.III. Conclusion This paper has highlighted important legal and practical issues preventing efficient adjudication of environmental cases in the Philippines. However, due to logistical and budgetary constraints, this paper focused broadly on case law from the Supreme Court and the personal experiences of lawyers. In order to fully understand environmental adjudication throughout the court system, further research should ideally analyze environmental cases from all municipal and Regional Trial Courts, Courts of Appeal, and the Supreme Court.It is important to see how cases area actually treated, particularly with respect to the issues examined in this paper. Furthermore, there may be important regional variations, particularly between areas with more natural resources and more urban areas. Even before such a study is undertaken, the courts can apply several lessons from this paper in the near future. First, while the courts have already taken commendable steps to waive filing fees and other costs for paupers, as mentioned above the definition of pauper may be under inclusive by not including NGOs.The courts should consider other definitions to reflect the realities of environmental NGOs. 94 Second, the Supreme Court should instruct the courts to dismiss SLAPP suits expeditiously. While the natural resource laws may not have anti-SLAPP provisions, Congress clearly did not intend to encourage such suits and there is nothing legally preventing the courts from dismissing them faster. Finally, the courts can address standing for citizens and class action suits. In particular, it should set out a clear position on standing in environmental cases.Other challenges will require long-term planning for the courts. Reducing the docket congestion is critical to expedite justice, although doing this will likely take years and require more judges. Likewise, the ongoing effort to train judges and lawyers in environmental law and science must continue, particularly as new judges and lawyers bring out the judicial system. The courts should also familiarize themselves with the legal mechanisms available to them, particularly in shifting the burden of proof.However, this will be most useful in pollution cases as they become more common in the future. Ultimately, the challenges described above will require multifaceted solutions from various stakeholders in the Philippine legal system. For example, Congress must work to improve standing and citizens suit provisions in other environmental laws. To reduce the financial risk of brining a suit, law firms could move toward a contingency fee system. Furthermore, it is the responsibility of DENR and environmental agencies to ensure that evidence is properly recorded and preserved.Finally, as the Philippine grows and wealth spreads, more plaintif fs will be able to undergo the financial costs of adjudication. Eventually, the best solution to these challenges may come not from within the courts but from a new adjudication system. The U. S. has worked successfully with administrative adjudication for environmental issues in the EPA and Department of Interior. Other countries have set up independent environment courts. Based on the results of further studies and the needs of the country, the Philippines may move to adopt one of these models.This would allow expert adjudicators to handle cases under rules that make sense for environmental issues. Finally, it is important for judges at all levels of the judicial system to understand the severity of environmental degradation in the Philippines. The only redress environmental plaintiffs or prosecutors may have is in their court. Thus, they should not be reluctant to grant standing or award large damages, when appropriate, because doing so will ensure that both humans and the enviro nment have their proper day in court.