CITY OF SAN FERNANDO, Philippines--A Department of Environment and Natural Resources team has called for a "thorough review" of the powers given to the Subic Bay Metropolitan Authority to issue environmental compliance certificates (ECCs) to investors at the Subic Bay Freeport.
The call came following the controversy arising from the construction by a South Korean shipbuilding company of two high-rise residential condominiums in a forested area at the free port.
It was the SBMA, not the DENR, that issued an ECC to Hanjin Heavy Industries & Construction Phil. Inc. for its 22-story and 12-story apartment buildings at a Subic forest reserve.
The SBMA's own land-use plan, prepared with the help of the World Bank during the stint of former SBMA chairman and administrator Felicito Payumo, banned any form of development on Ilanin Forest East, the site of the two Hanjin apartment buildings, a check by the Philippine Daily Inquirer (parent company of INQUIRER.net) showed.
In a report dated April 9, the DENR team looking into the Hanjin controversy said the power of the SBMA to issue ECCs, ensured through a Jan. 17, 2006 agreement between former environment secretary Michael Defensor, SBMA Chairman Feliciano Salonga and SBMA Administrator Armand Arreza, "appear[ed to contravene" a court ruling.
It was referring to a decision by the Court of Appeals on a case filed by former environment secretary Heherson Alvarez against Judge Remigio Escalada Jr. and the Subic Bay Marine Exploratorium.
"The Court of Appeals had the occasion to rule which government agency has jurisdictional authority to implement the EIS [Environmental Impact Study] system and issue an ECC within the Subic Special Economic and Freeport Zone," the team report said.
The appellate court had said that there was nothing in the base conversion law (Republic Act 7227) that gave the SBMA the power to grant and issue ECCs..
"RA 7227, as clearly worded, merely vests authority upon SBMA to 'protect, maintain and develop the virgin forests within the baselands' and to 'adopt and implement measures and standards for environmental pollution control for all areas within its territory, including, but not limited to all bodies of water and to enforce the same'," the court said.
It further said that "this authority cannot be construed as giving SBMA the right to implement the EIS system."
The SBMA, it added, "can neither rely on Proclamation 532 which is simply concerned with laying down the metes and bounds of the SBFZ. A provision therein stating that the 'maintenance within the Subic Bay Freeport shall be vested in the SBMA' cannot be taken to mean as granting SBMA the power to issue ECCs within its territorial jurisdiction."
"It is well settled that implementing rules and regulations issued by an administrative agency cannot restrict or enlarge the law, which it is tasked to implement. Indeed, rule-making power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute," the court said.
The DENR team also suggested "enhancing" the visitorial powers of the agency and its arm, the Environmental Management Bureau. Those powers were "curtailed" in the Defensor-Salonga-Arreza MOA, it observed.
The team also proposed a "coordinative working mechanism" between the DENR and SBMA.
In this, it was urged that the "SBMA ecology center may accept, process and recommend ECC applications of locators for non-environmental critical projects to the EMB for approval."
The team also proposed that the "issuance of tree-cutting permit, if ever, within the watershed reservation shall be the exclusive authority/function of the DENR."
It noted that in previous projects of the SBMA -- the Tipo Expressway, Morong Road and Maritan Hill quarrying -- or even the Subic-Clark-Tarlac Expressway of the Bases Conversion Development Authority, both agencies had secured the ECC, tree cutting permits and road right-of-way from the DENR in "accordance with existing law, rules and regulation."
In the same report, the DENR team also mentioned several orders why it should exercise its powers at the free port.
Executive Order 192 states that the DENR, through the EMB, is "still the primary government agency responsible for the implementation and enforcement of the EIS system, with consequent authority to issue ECC."
EO 291 and EO 300 issued by then president Fidel Ramos "confirm the authority" of the DENR to grant or deny the issuance of ECCs.
"It can hardly be disputed therefore that the authority to issue ECCs is exclusively vested upon the DENR EMB," said the team. It said that based on the appellate court's ruling, the two tree-cutting permits issued by SBMA to Hanjin were "without legal basis."
According to the team, Proclamation 926, which was signed by then president Corazon Aquino, and Proclamation 353, which was signed by President Macapagal-Arroyo, "vested upon the DENR the administration and management" of the 9,867-hectare Subic Water Forest Reserve.
The reserve has been declared a protected area under the National Integrated Protected Areas System IPAS (Republic Act 7586).
"SBMA authorities, however, are presumed to have acted in good faith in view of the [Department of Justice] opinion and the MOAs entered into successively by two former secretaries of the DENR," it noted.
Amethya dela Llana-Koval, SBMA ecology center chief, has argued that the issuance of ECC and tree cutting permits for Hanjin's housing project were based on the June 16, 1993 opinion issued by then Justice Secretary Franklin Drilon to former environment secretary Angel Alcala.
Citing provisions of RA 7227 and RA 7586, Drilon opined that the Subic Watershed Forest Reserve is "under the jurisdiction of the SBMA."
Koval also cited the Nov. 24, 1992 MOA between Alcala and then SBMA Chairman and Administrator Richard Gordon. In that MOA, the DENR recognized the SBMA's legal powers to protect and manage the reserve through its law enforcement department.
Koval also invoked the Defensor-Salonga-Arreza MOA.
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