1. Climate Change Litigation in the Philippines
The Role of the Judiciary in Promoting Climate Change Justice
ATTY. ALDER K. DELLORO, DPA Cand.
University of the Philippines Diliman
2017 EROPA General Assembly and Conference
Grand Intercontinental Seoul Parnas, Seoul, Korea

2. Climate Justice for a Changing Planet
“Adaptation is becoming a euphemism for social injustice on a global scale. While the citizens of the rich world are protected from harm, the poor, the vulnerable and the hungry are exposed to the harsh reality of climate change in their everyday lives”
Archbishop Desmond Tutu
Climate Justice for a Changing Planet, U.N. (2009)

3. Introduction: The Context
Climate Change as a Threat to Humanity
Global climate change is one of the most pressing threats to humanity in the 21st century. Not only is evidence of this warming unequivocal, scientific consensus holds that it is the result of human activity
If left unchecked, climate change will result in, at best, serious harms to many and, at worst, catastrophic harms to all
In the face of this threat, the international community has failed to agree on a set of norms for addressing the problem
Source: Feldt 2012

4. Introduction: The Context
CLIMATE CHANGE: The Philippine Experience
The country is made up of more than 7,000 islands
The economy of the Philippines is one of the biggest emerging markets in the world but many remain very poor
The Philippines is an area of intense seismic activity because it is located along the border of two tectonic plates on the “Pacific Ring of Fire” which means it is also prone to earthquakes and volcanic eruptions

5. Introduction: The Context
CLIMATE CHANGE: The Philippine Experience
It is globally noted that the Philippines, as an archipelagic state, is particularly affected by the expected negative impacts of climate change. According to the Intergovernmental Panel on Climate Change (IPCC), the country belongs to the ten most threatened countries worldwide
Climate change will have dramatic consequences for agriculture, fisheries, manufacturing and industries
Water sources and food security will be threatened as the country experiences annual bouts of droughts and floods resulting to loss of lives, livelihood and property. Sea level rise has already been observed in some coastal areas. The most vulnerable to the effects of climate change are those that are most dependent on natural resources, as well as those with the least capacity for adaptation
Source: CCC 2015

6. Introduction: The Context
Source: S. Kreft, D. Eckstein, L. Junghans, C. Kerestan and U. Hagen (2015)
Global Climate Risk Index, Germanwatch

7. Introduction: The Context
CLIMATE CHANGE: The Philippines as One of the Most Affected Countries
Of the ten most affected countries (1994–2013), nine were developing countries in the low income or lower-middle income country group, while only one was classified as an upper-middle income country
Altogether, more than 530,000 people died as a direct result of approx. 15,000 extreme weather events and losses between 1994 and 2013 amounted to nearly 2.2 trillion USD (in Purchasing Power Parities)
In 2013, the Philippines, Cambodia and India led the list of the most affected countries
The Fifth Assessment Report of the IPCC stresses that risks associated with extreme weather events will further increase with rising temperatures

8. Introduction: The Context
An average of 20 major storms hit the Philippines every year – Typhoon Hiayan was the 25th tropical storm to enter Philippine territory in 2013

9. THE PHILIPPINE EXPERIENCE
Typhoon Haiyan , known locally, as Yolanda hit the Eatern Samar on 7 November 2013
It caused storm surge with sustained winds of 147 mph and gusts of 171 mph
Over 14 million people affected in 46 provinces
5 million people saw their homes severely damaged or damaged

11. Philippine Response to Climate Change

12. Significance of the Study
The Role of the State and the Bureaucracy in Environment Regulation under the context of “Democratic Constitutionalism”
Climate Change as a development issue and not just an environmental issue which affects the poor, the marginalized and the most vulnerable members of the global and local community
The Changing Role of the Judiciary - from dignified silence to now as an active participant in environment regulation that calls for the application of Climate Justice

13. Theoretical Framework
The Role of the Judiciary in the Promotion of Climate Justice Towards a Resilient Philippines
Climate Change Phenomenon as the Context
ON DEVELOPMENT:
Climate Change as a Development Issue
PARTICIPATORY & PEOPLE-CENTERED DEVELOPMENT
The Role of the State and the Bureaucracy
CLIMATE JUSTICE
Towards Sustainable Human Development:
Social Justice and Equity

14. Climate Change as a Development Issue
Climate Change is a global phenomenon that affects the economies and socio-cultural, ecological and other vulnerabilities of countries
Being a developmental issue and not merely an environmental concern, climate change has become a defining and most challenging sustainable development issue of the 21st century
Source: Todaro, et. al. 2011; Mendoza 2014 citing World Bank 2010 and Letchumanan 2013

15. Conventional Strategies
Climate change can be addressed through two main approaches:
Climate change adaptation seeks adjustments in natural or human systems in response to actual or expected climatic stimuli, or their effects, that moderates harm and exploits beneficial opportunities
Climate change mitigation seeks to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system
Source: UNFCCC 1992

16. The Rule of Law Principles
Addressing Climate Change
Rules of Law Principles, Climate Justice and Sustainable Land Use
Climate change presents an existential threat to the well-being of all society, especially the poorest and most marginalized groups
Women, children and indigenous peoples in the world’s poorest countries are significantly affected by changes in land use due to climate change
Weak regulations, institutions and redress measures are foreclosing opportunities for more sustainable landscapes on all levels, leading to inequitable, un-transparent and ultimately, ineffective climate policies
Rule of law responses, guided by global calls for climate justice, offer principled approaches and innovative legal strategies to support climate mitigation, adaptation and finance for sustainable development
Source: IDLO 2014

17. Climate Justice as the Higher Order Strategy to Combat Climate Change
Climate Justice is considered as the higher order of Climate Change Mitigation and Adaptation
Climate Justice is also used with reference to legal systems, where justice is achieved through application and development of law in the area of climate change

18. Climate Justice as the Higher Order Strategy to Combat Climate Change
Addressing Climate Change
Climate justice is generally used as a term for viewing global warming as an ethical issue and considering how its causes and effects relate to concepts of justice, particularly environmental justice and social justice
This can mean examining issues such as equality, human rights, collective rights, and historical responsibility in relation to climate change

19. Climate Justice, Defined
“To ensure communities, individuals and governments have substantive legal and procedural rights relating to the enjoyment of a safe, clean, healthy and sustainable environment and the means to take or cause measures to be taken within their national legislative and judicial systems and, where necessary, at regional and international levels, to mitigate sources of climate change and provide for adaptation to its effects in a manner that respects human rights”
Source: International Bar Association 2014: 2

20. Sustainable Development
Hague Report (1992)
Sustainable Development: From Concept to Action
The call for sustainable development is not simply a call for environmental protection but it actually implies a new concept of economic growth – one that provides fairness and opportunity for all the world’s people, not just the privileged few, without further destroying the world’s finite natural resources and carrying capacity

21. The Institutional Framework for Environment Regulation in the Philippines
Delloro 2015

22. The Institutional Framework of Climate Change Justice
The 1987 Constitution was drafted at a time when there was a growing concern about the preservation of a healthy environment
The discussions during the Constitutional Convention manifested a clear desire to make environmental protection and ecological balance conscious objects of police power (Bernas 2009: 90)

23. The Institutional Framework of Climate Change Justice
The Constitutional Mandate
for the Protection of the Environment
Thus, Section 16, Article II on the Declaration of Principles and State Policies of the 1987 Constitution provides that: 
“Section16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”

24. The Role of the Judiciary
The Philippine Supreme Court as a Public Administrative System:
Supreme Court as a PAS (Alfiler)
Judicial Power & Judicial Review
Constitutional Separation of Powers: Executive Leadership, Legislative Intent and Judicial Interpretation (Rosenbloom)
Supreme Court as the Last Bulwark of Democracy: The Role of the Judiciary as the Guardian of the Constitution and as the Court of Last Resort

25. Constitutional Mandate: The Judiciary
Article VIII of the 1987 Constitution provides that: “Section 1. The Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the Courts of Justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

26. Judicial Review, Requisites
Actual Controversy and Ripeness
Locus Standi (Real Party in Interest)
Must be raised at the earliest opportunity
Case:
Oposa vs Factoran, Jr. (224 SCRA 792) in 1993
Source: Bernas 2009

27. Judicial Review, Defined
“The power of judicial review is the SC’s power to declare a treaty, international or executive agreement, law, presidential decrees, order, instruction, ordinance, or regulation unconstitutional.”
Notably, it also includes the power to declare unconstitutional the “application or operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations” even if the legal basis for the action is itself the Constitution.
Source: Bernas 2009

28. Rules of Procedure for Environmental Cases: AM No. 09-6-9-SC (2010)
Citizen Suits – giving the right to ordinary citizens to initiate legal action to enforce their right to the life sources (a.k.a. environmental right)
Consent Decree
Temporary Environmental Protection Orders (TEPO) in cases of threat of serious damage to the environment (or life sources)
Writ of Kalikasan
Writ of Continuing Mandamus
Protection against harassment countersuits (i.e., SLAPP suits – Strategic Lawsuits Against Public Participation); and
Adoption of the Precautionary Principle

29. Rules of Procedure for Environmental Cases: AM No. 09-6-9-SC (2010)
The Rules lay down procedures governing the civil, criminal, and special civil actions in all trial courts regarding environmental cases, with a view to protecting and advancing the constitutional right of the people to health and to a balanced and healthful ecology, and providing a simplified, speedy, and inexpensive procedure for the enforcement of environmental rights under Philippines law

30. Climate Justice Towards Sustainable Development and Resilient Philippines
TWO LANDMARK CASES
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners,
Versus

CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, Respondents.
G.R. Nos               February 15, 2011
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPES TANON STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES AND THE OTHER CETACEAN SPECIES, Joined in and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of God’s Creations,
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and his capacity as Chairperson of the Tanon Strait Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BEAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BEAR Regional Director-Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC.
G.R. No & APRIL 21, 2015

32. The Right to a Balanced and Healthful Ecology
MMDA vs Concerned Residents of Manila Bay
“This case turns on government agencies and their officers who, by the nature of their respective offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and their official complement, the pollution menace does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and commitment.”

33. The Right to a Balanced and Healthful Ecology
MMDA vs Concerned Residents of Manila Bay
“At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and for many decades in the past, spot for different contact recreation activities, but now a dirty and slowly dying expanse mainly because of the abject official indifference of people and institutions that could have otherwise made a difference”

37. The Right to a Balanced and Healthful Ecology
Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for Environmental Cases, it has been consistently held that rules of procedure “may be retroactively applied to actions pending and undetermined at the time of their passage and will not violate any right of a person who may feel that he is adversely affected, in as much as there is no vested rights in rules of procedure.”

38. The Right to a Balanced and Healthful Ecology
Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. The terminology of the text reflects the doctrine first enunciated in Opasa v. Factoran, insofar as it refers to minors and generations yet unborn

39. The Right to a Balanced and Healthful Ecology
Resident Marine Mammals, et. al. vs Secretary Angelo Reyes, et. al. In light of foregoing, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition.

40. Some Lessons and Conclusions
Climate change is a global phenomenon that poses real and imminent peril to the planet and all its inhabitants. It affects the economies and socio-cultural, ecological, and other vulnerabilities of countries (Mendoza 2014) and is thus necessarily a development issue which has greater consequences for the least developed counties like the Philippines
With poverty still looming in the country, a significant portion of its population does not possess adequate resources to insulate themselves from the potential dangers attendant to climate change. The role of the State and the bureaucracy to address the challenges of climate change has therefore become more important than ever

41. Some Lessons and Conclusions
The concept of climate justice is discussed as the third-order strategy, along with mitigation and adaptation, to address the issues of climate change
Climate Justice is anchored on the rule of law concept which seeks to provide substantive legal and procedural rights relating to the enjoyment of a safe, clean, health and sustainable environment providing for the means to take or cause measures to be taken within the country’s legislative, executive and judicial systems to mitigate sources of climate change and provide adaption to its effects in a manner that respects human rights (IBA 2014: 2)

42. Some Lessons and Conclusions
The pressing concerns attendant to Climate Change have given rise to new mechanisms and strategies on how the governments pursues Environment Regulation in the Philippines
The institutional framework of environment regulation in the country is evolving as a response to climate change issues
The Judiciary plays an important role in the promotion of climate justice as the “Guardian of the Constitution” and as the “Court of Last Resort”

43. Climate Justice as Human Right
“The notion of human rights builds on our shared humanity. These rights are not derived from the citizenship of any country, or the membership of any nation, but are presumed to be claims or entitlements of every human being. They differ, therefore, from constitutionally created rights guaranteed for specific people.” Amartya Sen, The Idea of Justice

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48. Thank you!