Concern for the state of the nation’s environment had risen over the years. Young and old alike realized the value of taking care of the environment for the people are actually enveloped by it.  With the realization came the efforts done by various groups to do something to help Mother Nature heal itself. The government began issuing legislations geared towards environmental protection.

 In an effort to integrate the different programs of the governments for environmental protection, Presidential Decree (P.D.) 1151 was promulgated by then President Ferdinand E. Marcos, outlining the “Philippine Environmental Policy”.

 After P.D. 1151 came another law, P.D. 1586, that outline the intensive and concerted effort for the protection of the environment, and requires for the first time the submission of environmental impact assessments and statements.

 With P.D.1586, a more detailed Impact system was developed, with the Department of Environment and Natural Resources (D.E.N.R.) as the implementing agency. Now, the Environmental Management Bureau is tasked with evaluating the conformity of projects undertaken in complying with P.D. 1586.

 After 10 years of implementation, the authors of this research took task to assess the procedure in granting Environmental Compliance Certificates (ECCs).

 This research undertakes to explore this portion of environmental legislations that the government had formulated, uncover whether the requirements for the issuance of ECCs had been relevant and effective in its improvement of the quality of environment.
 

II. PURPOSE OF THE STUDY

 This study aims to achieve the following objectives:

A. To know the procedure for the issuance of CNCs and ECCs.
B. To make a simplified and comprehensive presentation of said procedure by making flowcharts.
C. To analyze the procedure of CNC and ECC issuance with the use of questionnaires, interview schedules, and researches.
D. To come up with recommendations for the improvement of said process.
 

III. SCOPE AND LIMITATIONS

The study contains the following analysis, data and information: 

A. A discussion and analysis on the requisites for the classification of the project as ECA, ECP, or one not covered by the EIS system.
B. A comprehensive study on the process of issuance of CNC’ and ECCs by the DENR-Region XI.
C. Data obtained from ten (10) CNC and ten (10) ECC grantees in Davao City for year 2000 through questionnaires.
D. The process of issuance of CNCs and ECC’s under the jurisdiction of DENR of Region XI through the EMB.
 

IV. METHODOLOGY

 The following methods were used in the study:

 A. Research;
 B. Interview; and
 C. Questionnaire

Pertinent information and applicable laws on the project were acquired through research from materials in the Environmental Management Bureau (EMB) and  the law library. To supplement such, interviews with personalities significant in the study were also conducted. 

 In the questionnaire method, ten (10) respondents were picked from the ECC grantees of year 2000 in Davao City. Another ten (10) were selected from the CNC grantees of the same year here in the city.

 For the year 2000, one hundred ninety (190) ECCs were issued by the DENR Region XI.  Eighty–five (85) of these were projects in Davao City. For CNCs, only seventy-one (71) were issued in the region . Twenty – one (21) were for undertakings here in the City. 

 For the same year, there were forty-three (43) types of projects granted ECCs and CNCs in Davao City. Thirty-eight (38) of those types were for ECCs and only five (5) for CNCs. 
 The respondents were proponents of the different types of projects. Using stratified random sampling method. This method selects simple random samples from mutually exclusive subpopulations, or strata, of the population. Hence, in this study, each respondent was selected from among the different project types. Proponents of twenty (20) out of the thirty-eight (38) types of projects that were issued ECCs were given request letters and questionnaires by the group. Only ten (10) favorably responded. Hence, we also picked ten (10) respondents from among the CNC grantees, each one representing a different type of undertaking. 
 

V.  OPERATIONAL FRAMEWORK

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VI. REVIEW OF RELATED ENVIRONMENTAL LEGISLATIONS

 Various environmental legislations had been formulated by the government prior to Presidential Decree (P.D.) 1151, one of which was to establish the National Environmental Protection Council (NEPC). None of these statutes however went as far as declaring a positive policy towards environmental protection as P.D. 1151.

 P.D. 1151 declared as a policy of the State the following: (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipino, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being.

 P.D. 1151 also laid the groundwork for an intensive, integrated program of environmental protection as a concerted effort of different agencies of the government, lead by NEPC. In Section 4 of P.D. 1151, all agencies of the national government, including government-owned and controlled corporations as well as private corporations, firms and entities were required to prepare in every project which significantly affect the quality of the environment a detailed statement on environmental impact of such project.

 An Environmental Impact Statement (EIS) was formally established by P.D. 1586 based on Section of P.D. 1151 requiring every person, partnership or corporation undertaking an environmentally critical project (ECP) or on environmentally critical area (ECA) an Environmental Compliance Certificate (ECC).

 P.D. 1586 also sanctions non-compliance through suspension or cancellation of the applicant’s certificate, and /or a fine of P50,000.

 A detailed presentation of what constitutes an ECA or ECP was laid down in Proclamation No. 2146, showing the extent of the scope of Environmental Impact Statement System established under P.D. 1586.

 From the Ministry of Human Settlements and National Environmental Protection Council (NEPC), the mandate of implementing the government’s environmental protection program was later passed on to the Department of Environment and Natural Resources (D.E.N.R.). To fulfill this mandate the agency formulated Department Administrative Orders 21 and 37 that are actually procedural manuals for the full implementation of P.D. 1586. The manual is still being used by the Environmental Management Bureau (EMB) of DENR (now a line bureau after the Clean Air Act was passed in 1999) in implementing the Environmental Impact Statement System.

 The breadth of the EIS System was recently expanded with the passage of several legislations. Republic Act No. 8749, otherwise known as the Clean Air Act, allowed regional industrial centers designated as air sheds to allocate emission quotas to pollution sources as part of an environmental management plan attached to the ECC.  The Clean Air Act also required project proponents to put up financial guarantee mechanisms to finance the needs for emergency response, clean up and rehabilitation of areas that may be adversely affected during the program or project’s implementation, a condition to be attached to the ECC.

 In 1996, Executive Order No. 291 was passed to improve the existing EIS System. Project proponents were directed to simultaneously conduct environmental impact study and the feasibility study of the proposed project. In-house environmental units in all implementing agencies were also established, the functions of which include: assisting in the preparation of EIS, facilitate securing of ECCs and ensuring compliance thereof, and ensuring that the loan or related funding applications of government and private institutions have complied with the EIS System.
 Previously, in 1992, DENR Administrative Order No. 21 was issued.  It amended the Revised Rules and Regulations Implementing P.D. 1586.

 In 1996, DENR Administrative Order No. 37, referred in this study as DAO 96-37, was issued revising DENR Administrative Order No. 21, Series of 1992 (DAO 92-21), to further strengthen the implementation of the Environmental Impact Statement (EIS) System.
 

VII. ANALYSIS

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A.  PRELIMINARY SCREENING

A two-step procedure is observed to ensure that only projects or undertakings with significant environmental impacts are covered by the Environmental Impact Statement (EIS) System.  First, the Environmental Management Bureau (EMB) or DENR Regional Office (RO) shall determine if the proposed activity is a “project” as defined under DAO 96-37.  Second, if it is determined that the proposed activity is a project, the EMB or DENR RO shall then determine whether the project is environmentally critical (ECP) or located within an environmentally critical area (ECA).

The following are the criteria used to determine if the proposed activity is a ”Project” or “Undertaking” as defined in the Philippine EIS System:

A. location criteria - the activity must conform with existing & duly approved land use plan of the area;

B. technology criteria - the activity must employ the use of appropriate technology that will not require the use of toxic and hazardous materials; will not produce or require the disposal of waste materials that can pose serious health hazards; or, will not generate significant amount of organic or solid wastes;

C. size criteria - the activity/structure must not occupy a lot area of more than 1,000 square meters in an urban area or 1.0 hectare in a rural area.  If the activity will involve construction, the structure must not have a height exceeding a three (3) storey-building including basement;

D. emission and effluent criteria - the effluents or discharges of the activity must conform with emission and effluent standards established by the DENR (e.g. DENR DAO Nos. 14 & 14-A, Series of 1993; DAO 34 & 35, Series of 1990), regardless of quantity, volume or amount;

E. community acceptability criteria - no serious complaints are expected from neighboring establishments or facilities; and

F. the nature of the activity shall not pose significant environmental impact as determined by the EMB or DENR Regional Offices.

An activity that passes ALL criteria shall be considered as outside the purview of the Philippine EIS System, and shall be issued Certificate of Non-Coverage upon request by the proponent. 
As we conducted our interviews with various entities and personalities who were intimately involved in the processing of ECCs, we have gathered the following serious dilemma encountered with this preliminary screening of the EIS System and to the system as a whole.  Some project proponents, particularly those under the Local Government Units (LGUs), put forward the observation that they are not covered by the EIS System, that even preliminary screening is not necessary for the implementation of their projects.  Meaning, they are automatically exempted from the statutory operation of the EIS System.  They are proposing that even when their proposed activity does not pass the above-cited criteria, they do not have to submit to the jurisdiction of the EMB/DENR for prior test to determine the possible negative impacts of their proposed undertaking to the environment, and to identify the proper mitigating measures to  minimize said  negative impacts. 
 

B. ENVIRONMENTALLY CRITICAL PROJECT (ECP)

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Section 3.0(h), Article 1 of  DAO 96-37 defines an Environmentally Critical Project (ECP) as one that has high potential for significant impact. The following are the types of projects that are environmentally critical:

I. Heavy industries
a. Non-ferrous metal industries
b. Iron and steel mills
c. Petroleum and petro-chemical including oil and gas
d. Smelting plants

II. Resource Extractive Industries
a. Major mining and quarrying projects
b. Forestry projects 
1. Logging
2. Major wood processing projects
3. Introduction of fauna (exotic animals) in public/private forests
4. Forest occupancy
5. Extraction of mangrove products
6. Grazing
c. Fishery projects
1. Dikes for/and fishpond development projects

III. Infrastructure Projects
a. Major dams
b. Major power plants (fossil-fueled, nuclear-fueled, hydroelectric or geothermal)
c. Major reclamation projects
d. Major roads and bridges

IV. Golf course projects
Other projects which may be proclaimed as environmentally critical by the 
 President of the Philippines, pursuant to Section 4 of PD 1586, will also be classified as such. 
 Any person, partnership, or corporation who shall undertake or operate an ECP must first secure an Environmental Compliance Certificate (ECC). As a first step, the proponent must undergo Scoping. Scoping is the stage in the EIS System where information and assessment requirements are established to provide the proponent with the scope of work for the EIS (Section 3.0 aa ,  Article 1 DAO 96-37). This process provides an early link between the DENR and the proponent to ensure that the EIA addresses relevant issues and allow stakeholders to make their concerns known to ensure that the EIA adequately addresses the relevant issues. An agreement is then established between the proponent, the DENR and the stakeholders. 

The next step is the preparation of the Environmental Impact Statement (EIS). This consists of documents of studies of the environmental impacts of a project including the discussions on direct and indirect consequences upon human welfare and ecological and environmental integrity. Such may vary from project to project but shall contain in every case all relevant information and details about the proposed project or undertaking, including the environmental impacts of the project and the appropriate mitigating and enhancement measures. (Sec.3.0 m, Art.1, DAO 96-37)

 The EIS is submitted for review to the Central Office of the Environmental Management Bureau (EMB) in Manila. The document serves as basis for the issuance or denial of the ECC by the DENR Secretary.  Hence, the Regional Office of the said Bureau is not tasked to process ECC applications and issuances for ECPs. Its role regarding the matter is only to facilitate the scoping until receipt of the EIS document from the proponent then indorse it to the Central Office. Within fifteen (15) days after the receipt of the ECC, the Regional Director of the EMB shall meet with the proponent to discuss and agree on arrangements pertaining to the compliance with the ECC conditions. A Multi-partite monitoring team (MMT) shall be organized by the proponent, in close coordination with the DENR, to undertake the compliance monitoring. The team is composed of representatives of the proponent and stakeholder groups, including representatives from the LGU, NGOs, the community, women sector, concerned PENRO and CENRO. However, this does not preclude the EMB , the DENR Regional Office, or the proponent himself from conducting its own monitoring of the project.

THE EIS REVIEW PROCESS

Before the EIA documents are accepted for substantive evaluation by the DENR Regional Environmental Management Protected Areas Sector (EMPAS) or the Environmental Impact Assessment Review Committee (EIARC) in order to assess the quality of the EIA, it must first pass the procedural review.

The procedural review is conducted by the receiving staff of DENR which shall screen whether not the EIA document complied with the required procedure and content. Upon passing the procedural review, the EIA documents are now accepted by the EIARC or EMPAS for substantive evaluation.

It is very important that the review process is conducted with the utmost proficiency. Since it is here where the fate of the project lies, whether or not an ECC shall be issued or not. It involves a review of the merits of the application.

The EIARC members shall evaluate the EIS document based on its compliance with the review criteria contained in the Substantial Review Form. The Substantial Review Form shall be modified or revised to incorporate the requirements as identified in the agreed scope of the Formal Scoping Report. The EIAR shall evaluate the EIS in terms of the following general criteria:

§ Completeness of information
§ Clarity of presentation
§ Appropriateness
§ Accuracy and precision information or assessment
§ Degree of consistency
§ Responsiveness

 The general criteria followed by the EIARC in the EVALUATION of the EIS is too BROAD. Such should be specific. Further, these criteria are merely directory since the review committee may require submission of additional information or requirement intended to provide elaboration or clarification of some aspects of the EIA Study.

The EIARC should endeavor to complete the substantive review within 60 days. In order to fulfill the intention, the following highly recommended approaches or mode of implementations shall be adopted whenever practical and appropriate: 

1. Conduct of meetings
2. Public hearing or Public consultation
3. State visits or ocular inspections including walk-through
4. Technical studies or special researches to be undertaken by research institutions or academe
5. Other methods may be employed depending on the magnitude and complexity of the project.

 The 60 -day period requirement for substantive review, SEC 12. ART 3, is not mandatory but merely directory. A decision by the EIARC on whether or not to recommend the issuance or non-issuance of ECC must be reached on the last meeting of the substantive review phase within the 60-day timeframe. However, under exceptional circumstances, additional EIARC meetings may be scheduled with the written approval of the EMB Director or DENR EMPAS-RTD. Any EIARC meetings beyond the 6th session shall require the prior approval of the undersecretary for environment and program development.

 Within 15 days from completion of review the EIARC submits EIARC report to the EMB Director. The report shall contain the results of the review or evaluation and the committee’s recommendation with respect to the issuance or non-issuance of ECC including the appropriate conditions.

 The 15-day timeframe for the EIARC REPORT submission includes the time necessary for the EIA Division/Unit/Section Head of EMB or DENR RO concerned to review and evaluate the EIARC Report. Such report shall include other supporting or pertinent documents. Such report shall be endorsed by the EIA Division/Unit/Section Head to the EMB Director or RTD for EMPAS, as the case may be, with the appropriate recommendations or comments
 The submission of the EIARC report is mandatory. However, the findings of the review committee is, nonetheless, not conclusive. This is because it is still subject to review and evaluation by the EIA Division/Unit/Section Head of EMB or DENRO concerned. In other words, as the report shall be further endorsed to the EMB Director, the same shall be with the APPROPRIATE RECOMMENDATION or comment of the EIA Division/Unit/Section Head concern.

 Within 15 days from the receipt of the EIARC report, the EMB Director shall make his own recommendation to the Office of the Secretary for final decision. Copies of the EIARC report and other pertinent documents shall be attached to the EMB Director’s recommendations.
 Again, the recommendation of the EIA Head is not conclusive since the EMB Director shall make his own recommendation to the Office of the secretary for final decision.

 Within 15 days from receipt of the report of the EMB Director, unless circumstances warrant a longer period of time, the Secretary shall either grant or deny the issuance of ECC in granting or denying the issuance of the ECC the Secretary shall take into account the social and environmental cost implications relative to the judicious utilization development, and conservation of the country’s natural resources.

 Finally, the findings of the EIARC review committee, EIA Head, and EMB Director is not conclusive. This is because the FINAL DECISION whether not to GRANT or DENY the issuance of the ECC is with the DENR SECRETARY.
 

C. ENVIRONMENTALLY CRITICAL AREA (ECA)

A project in an environmentally critical area goes through the following basic steps in obtaining an Environmental Compliance Certificate:

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Section 3.0 (g), Article 1 of DAO 96-37 defines an Environmentally Critical Area as one that is environmentally sensitive and is so listed under Presidential Proclamation No.2146, series of 1981 as well as other areas which the President may proclaim as environmentally critical in accordance with Section 4 of PD1586. The following are projects located on Environmentally Critical Areas (ECAs):

I. All areas declared by law as national parks, watershed reserves, wildlife preserves, and sanctuaries;

II. Areas set aside as aesthetic potential tourist spots;

III. Areas which constitute the habitat for any endangered or threatened species of indigenous Philippine wildlife (flora and fauna);

IV. Areas of unique historic, archeological or scientific interest;

V. Areas which are traditionally occupied by cultural communities or tribes (indigenous cultural communities);

VI. Areas frequently visited and/or hard-hit by natural calamities (geologic hazards, floods, 
typhoons, volcanic activity, etc.);

VII. Areas with critical slopes;

VIII. Areas classified as prime agricultural lands;

IX. Recharged areas of aquifers;

X. Water bodies characterized by one or any combination of the following conditions:

1. tapped for domestic purposes
2. within the controlled and/or protected areas declared by appropriate authorities
3. which support wildlife and fishery activities

XI. Mangrove areas characterized by one or any combination of the following conditions:

1. with primary pristine and dense young growth
2. adjoining mouth of major river systems
3. near or adjacent to traditional productive fry or fishing grounds
4. which act as natural buffers against shore erosion, strong winds and storm floods
5. on which people are dependent for their livelihood

XII. Coral reefs characterized by one or any combination of the following conditions:

1. with fifty percent (50%) and above live corraline cover
2. spawning and nursery grounds for fish
3. which act as natural breakwater of coastlines.

For projects in an Environmentally Critical Area (ECA), the proponent must first submit an Initial Environmental Examination (IEE) document to the EMB and the Protected Areas Sector (EMPAS) of the DENR Regional Office where the ECA and the project are supposed to be situated. Said IEE is the document required of proponents describing the environmental impact of, and mitigation and enhancement measures for, projects or undertakings located in an ECA.

Not later than two (2) working days after its submission, a procedural review of the IEE document is conducted by the DENR Regional EMPAS Screening Officer.

The said officer determines the completeness and order of presentation of the information by using the Procedural Screening Form. If the IEE documents are complete, they will be formally accepted. Otherwise, they will be returned the proponent for revision and/or submission of missing documents.

 After passing the procedural review and within fifteen (15) days from submission, a substantive review by the Environmental Impact Assessment  Division of the EMPAS is conducted. The EMPAS evaluates the IEE document based on compliance with the review criterion contained in the Substantial Form. The EMPAS may employ site visits or ocular inspections, additional sampling or technical studies, or informal consultation to validate socio-economic impacts and social acceptability.

 Within fifteen (15) days from completion of the substantive review, the EMPAS submits the report to the DENR Regional Executive Director (RED) and may recommend the issuance or non-issuance of an ECC. Within fifteen (15) days from the submission of such report, the RED may grant or deny the issuance of an ECC or decide that an EIS  be further required. 
A project may need a full Environmental Impact Statement (EIS) when there’s a presence of significant environmental impacts not adequately addressed, strong public opposition or low social acceptability, presence or possibility of high public risk. 

Also, if it involves the use, manufacture, storage, or transport of highly pollutive substance, or if there are significant socio-cultural impacts attendant in the project.

 The data of our study shows that all of the respondents who were proponents of projects located in ECAs did not have problems with the IEE Review process. Sixty  percent (60%) of them said that the load of requirements were reasonable, while forty percent (40%) even said that they were easy to comply with. Eighty percent (80%) of said ECC grantees of projects in an ECA answered in the affirmative when asked if they think all of those requirements are indeed reasonably necessary for an ECC to be duly granted an applicant. Only twenty (20%) said that not all of those documents required to be submitted are really important.

 One reason that the group could give to explain such results is that only twenty percent (20%) of said group of respondents were made to further undergo an  EIS review. The rest merely submitted the IEE and waited for the decision of  the Regional Executive Director (RED).
 In addition, when asked  whether their project was categorized as an  ECP or as a project located in an ECA, many of the respondents could not give a direct answer. This is so since most of them are not even sure up to this point if indeed they belong to the ECA category. Because their project was not an ECP, they checked the space provided for ECA in the questionnaire. They could not select the space for not covered by the EIS System because it was not for a Certificate of Non-Coverage (CNC) they were instructed to apply, but for an ECC. 

 The interviewees claim that indeed there are gray areas in the law. The enumeration provided for by Proclamation No.2146 and DAO 96-37 of the DENR of the particular types of projects to be classified as ECP and as located in an ECA is, according to some of our respondents, exclusive. To them, such exclusivity creates confusion which even leads to conflicts against the DENR. Modernization paves the way for a variety of new and specialized undertakings or projects, which oftentimes, are not among those enumerated in the law. However, DAO 96-37’s Procedural Manual explains that it is not exclusive and may be further redefined by the DENR from time to time. Rapid technological advancement makes it impossible to name all potential projects that may have significant negative impact on the environment. In exercising its sound judgment and discretion, the DENR shall apply a liberal interpretation of the law. But the problem here is that the DENR has not expanded the scope of the coverage in such a way that it meets the needs of the country’s growing industry. The list or enumeration in DAO 96-37 is still the one being used as basis for the classification. Those projects that do not fall under any of the categories therein mentioned are being classified through the discretion of the EMB. Such an exercise of discretion poses questions in the minds of proponents. What serves as basis for the classification when the project does not in any way fall under any of those enumerated in the law? Is the law’s definition of an ECP and an ECA the only basis for the classification? The absence of a comprehensive and concise definition of an ECP and an ECA makes the manner of classification, using the DENR’s sound discretion, capricious. As a result, the proponents tend to simply accept whatever classification is given them and follow what is instructed of them in order to prevent delay in the implementation of the project. Thus, all of our respondents who are ECC grantees, both for ECPs and those in ECAs, answered in the negative when asked if they had 
any objections regarding their classification. 

 For projects covered by the EIS System, the law provides that an ECC should be secured first to be subsequently granted a permit to operate. In no case should a proponent implement the project without the necessary permit. And, in no case should he be given a permit without the required ECC. Contrastingly, this study would show that in reality, many projects are actually being implemented without ECCs being issued, or pending the issuance of such. Seventy percent  (70%) of our respondents answered in the affirmative when asked if they continued implementing their projects pending the approval of their ECC application (no.18, Questionnaire). The reasons given to us are as follows:

1. They were not aware of the requirement of obtaining an ECC. When they were informed about it, the project was already on-going. They were not ordered to suspend it pending the approval of their application.

2.  They are not willing to suffer financial losses due to a delay in the project since they are aware that it could take months before they could be granted the needed ECC. To make matters worse, the time before such could be obtained cannot be fixed.

3. It is alright to take the risk of being penalized by the EMB for implementing the project 
without an ECC because the allowable fine is only up to Php50,000. Said amount is way lesser than the losses they would incur due to the delay of the project.

 It is undeniable that very few people know about the EIS System. This could be attributed to the fact that the EMB’s EIA Division lacks manpower. Hence, information dissemination is not that efficient. Forty percent (40%) of our respondents who are ECC grantees expressed that it was their project engineer who informed them of the ECC requirement, thirty percent (30%) imparted that it was the EMB/DENR, twenty percent (20%) answered for the City Engineer’s Office, and ten percent (10%) said that another government agency gave the information (DPWH). Considering that an undertaking or project needs to obtain a permit from the proper government agency or City Government office in order to be able to operate, said permit may immediately require the proponent to secure an ECC from the DENR instead of instructing him to go to the EMB and have the project classified as either ECP, one located in an ECA, or as a project not covered by the EIS System. In the latter case, a CNC is issued. Thus, resulting to the fact earlier established, that many of the project proponents do not even know how they were classified and why they were required to secure an ECC when they do not fall under any of the categories enumerated by law. These government agencies or offices, however, by requiring the proponents to seek certification from the DENR, are able to help the latter inform the people on the EIS System. On the other hand, they also tend to cause further confusion on the matter of EIS coverage. An example here is the case of San Miguel Corporation who was required to obtain two (2) ECCs  - one for the construction of the brewery and one required by the Department of Agrarian Reform (DAR) for the conversion of the land, on which said brewery was to be built, from agricultural to industrial. It could be observed that DAR automatically required an ECC for said process, without San Miguel knowing whether it was because they were an ECP or ECA. Our interviewees from said corporation believed that they do not fall under any of the two classifications and that they could have applied for a CNC. In fact, San Miguel was actually given a CNC by the DENR at first, but when it was presented to the DAR, the latter told them that it was an ECC they were requiring, not a CNC. 

 True. One of the types of area enumerated in DAO 96-37 as an ECA is prime agricultural land and the land being applied for conversion by San Miguel was of such nature. However, if that would make the classification of the project as an ECA, then why was the ECC issued in the national level and not by the DENR Regional Director?

Further, why was it required to undergo scoping when it is not necessary for projects located in an ECA but only to ECPs? In addition, the construction of the brewery was neither classified. It clearly does not come under the category of heavy industries or any other category of an ECP. If such was considered an ECP, then why was the ECC issued only by the EMB Regional Director and the DENR Regional Executive Director when it should have been the DENR Secretary who issued such?

 It is evident from the foregoing observations that there is no uniformity in the procedure. We were informed by the EMB that indeed, some agencies automatically require ECCs in certain projects, in accordance with their own rules and pursuant to the special laws governing them. Hence, instances where a particular agency would be requiring an ECC  for a certain project which is actually not covered in the EIS System are usual occurrences.
 

THE IEE REVIEW PROCESS

An Initial Environmental Examination (IEE) is a document required of proponents and describes environmental impacts and mitigation and enhancement measures of projects located under ECA. The IEE evolved from a mere project description required under DAO 21, series of 1992. The purposes of IEE are:

1. to identify all potential environmental issues/impacts;
2. to identify all significant environmental impacts;
3. to resolve all significant environmental impacts within the scope of the IEE; and
4. to recommend additional studies or an EIS to resolve outstanding issues or impacts.

The scoping requirement is absent if the project is not an ECP but merely one located in an ECA, unless an EIS is further required in the latter. The group opines that the project, no matter how small it is, as long as it is classified either as an ECP or in an ECA, should undergo scoping, as it is highly beneficial to the proponent. Through the said process, he will be able to identify environmental issues, know the concerns of the affected parties in the community, and determine ways to mitigate negative impacts in the environment, bringing into consideration the concerns of the stakeholders.

For relatively small projects, the EMB usually requires only a checklist report instead of a full IEE report. For the same reason above, the group believes that an IEE report should be mandatory to all projects in an ECA.

 The initial review of IEE documents is lodged on the screening officer of the DENR Regional Office EMPAS. He makes the recommendation on the acceptance or non-acceptance of the document. With the volume of the IEE applications received by the DENR, to have only one (1) Screening Officer per region is a big dearth of personnel to scrutinize closely all IEE documents. The lack of importance given to the IEE is further stressed by a provision allowing the delegation of the function of the Screening Officer to the CENRO and PENRO.

 Section 21.0, Article 3 of DAO 96-37 provides for that the IEE document  shall be validated through inspections and this substantive evaluation shall be completed within thirty (30) days. It is not clear, however, how this is made possible due to lack of personnel by DENR-RO (EMPAS).

 In practice, the IEE is only reviewed on paper. It is engaged on the completeness of its information, clarity of presentation, appropriateness, accuracy and precision in information or assessment, consistency and responsiveness.

 The validation, again, shows the bias for big projects in the granting of ECC. It is often repeated here that big projects earn attention usually cursorily given to small projects. For big projects, the EMPAS may even convene technical committee for the purpose of validation. Hence, it is possible then that project proponents will divide their project into smaller components to escape special attention given by the DENR to bigger projects located in an ECA.

EMPAS REPORT

The EMPAS may, again, upgrade the project in its recommendation to one requiring an EIS, or the DENR RED may decide that an EIS be further required. It is to be noted, as earlier discussed, that an EIS is only mandatory in certain conditions. Why it shouldn’t be required of all projects is not clear to us. No matter how big or small the project is, as long as it is classified either as an ECP or one located in an ECA, hence requiring an ECC, it undeniably produces  negative environmental and/or social impact. The size of the project is not a decisive factor. Once classified as falling under the EIS System, they should all undergo a uniform and effective process before being issued an ECC.

EIS REVIEW FOR ECA
The procedure of the EIS Review for ECPs is the same with the “upgraded” EIS Review in projects located in an ECA, The difference only is that the latter is done in the regional level while the former in the national level. Hence, the ECC for an ECP is issued by the DENR Secretary while the ECC for a project in an ECA is only issued by the DENR Regional Executive Director.

 With the foregoing, the analysis made in the previous chapter is also applicable here. 
 

D. CERTIFICATE OF NON-COVERAGE

 DAO 96-37 states that the following projects and undertakings are not covered by the EIS System:
a. Projects which are not considered as environmentally critical or located within an ECA;
b. ECPs or projects within ECAs which were operational prior to 1982 except in cases where their operations are expanded in terms of daily production or area or the process is modified;
c. Countryside business and barangay entities (CBBEs) covered by RA 6810, otherwise known as the Magna Carta for Countryside and Barangay Business Enterprises (Kalakalan 20) and registered with the Department of Trade and Industry. between 1991 to 1994, inclusive. Provided that, unless otherwise amended amended by law, non-coverage of such CBBEs shall only subsist for a five (5) – year period beginning from its date of registration.

CNC may be issued by the EMB Director or the Regional Executive Director (RED) after the proponent had complied with the following procedures:

1. Proponent goes to EMB with detailed location map, brief project description and a certification from CENRO that the project is not located in ECA,

2. EMB or DENR EMPAS will review documents submitted will recommend to the EMB Director or RED the issuance or non-issuance of a CNC in seven days (7) working days,

3. CNC issuance with reasons for non-coverage

4. CNC non-issuance; proponent must be informed that project shall undergo EIS.

     DENR/EMB informed thirty percent (30%) of the respondents who were CNC grantees of the requirement of CNC in the course of their transactions with DENR. Another thirty percent (30%) were informed by their mother company, or their own employees. Twenty percent (20%) were informed by their project engineer, one was informed by the City Engineer’s office and the last proponent was informed by the Register of Deeds.

 Ideally, the respondents should have been informed by the requirement of CNC before the implementation of the project but there are often wildcards. One CNC grantee out of 10 respondents admitted that the project was already underway when he applied for a CNC.

 The requirements stated were found to be easy to comply with by forty percent (40%), while fifty percent (50%) found them reasonable and ten percent (10%) found them to be burdensome.

 All of the respondents granted with CNC admitted that the requirements were relevant for the granting of CNC.

 The EMPAS has the power of reviewing all documents and recommending to the EMB Director whether a CNC will be issued or not. It would seem that he has great leeway and DENR exercises wide discretion in classifying whether a project is environmentally critical or within a critical area.

 Ideally, as soon as all of the requirements are submitted, issuance of CNC should come after, at the earliest, three weeks. The problem is, just complying with the documentation papers took some (twenty percent) about four to six months. Fifty percent (50%) took one to two months just to comply with the requirements.

 For the issuance of CNCs, the period ranges from two (2), months to more than six (6) months. This goes to show that the proponents really have a hard time complying with the requirements, just to be awarded with a certificate of non-coverage.

 However, only forty percent (40%) admitted that they had problems in complying with the requirements.

 Due to the long period of applying for the CNC, eighty percent (80%) of the respondents continued implementing their projects while applying for CNC.  Still, only twenty percent (20%) thought that the length of time is unreasonable.

 The EMPAS is only required by DAO 96-37 to review the documents submitted and may perform inspections only when he deems it fit.

 Thirty percent (30%) of CNC grantees studied here answered that indeed, there was no monitoring done while the project was going on.

 For those who countered that there was monitoring, eighty percent (80%) said that it was the EMB who conducted such, while twenty percent (20%) said that it was done by the Multipartite Monitoring Team.

 However, the answers of the respondents appear doubtful. It is a fact that an MMT is only constituted for projects falling under the EIS System. Then why did such an answer appear?  It would seem that the respondents confuse monitoring for the CNC requirements’ compliance with monitoring of the project by other concerned agencies, which they might have wrongly identified as the MMT. It is even doubtful if there is truly  monitoring for CNCs. Engineer Patnugot, head of the EIA Division of the EMB Region XI, himself said that compliance monitoring for ECCs issued is a difficult job because of the lack of personnel   in his division. Thus, they have to prioritize bigger projects with a higher degree of negative environmental impacts. Now, what more to projects not falling under the EIS System? The requirements or guidelines that must have been stated in the CNC need not, practically speaking, be monitored by the EMB. This does not prejudice other agencies to conduct said monitoring later on though.
DAO 96-37 exempts projects under Kalakalan 20 from the coverage of the EIS. However, the group opines that they should not be outrightly exempted.  The location of the project should first be considered. If it is located in an area close to other enterprises also falling under Kalakalan 20, the project, together with the others, can collectively cause negative impacts to the environment. Hence, such project should be covered by the EIS System. Otherwise, the law will destroy, by way of exceptions what it seeks to protect in the first place.

E. MONITORING

 The primary purpose of monitoring is to ensure the judicious implementation of sound environmental management within a company/corporation and its areas of operation. Specifically, it aims to:
1. monitor project compliance with the conditions set in the ECC;
2. monitor compliance with the Environmental Management Plan (EMP) and with applicable laws, rules and regulations; and
3. provide a basis for timely decision-making and effective planning and management of environmental measures through the monitoring of actual project impacts vis-à-vis the predicted impacts in the EIS or IEE.

Monitoring for ECCs granted an ECP or pursuant to an EIS is done through the multi-partite monitoring team (MMT). This is provided for by Section 10 (a) of Article IV of DAO 96-37. The MMT shall be formed immediately after the issuance of said ECC. It is principally tasked to undertake monitoring of compliance with the ECC conditions, the EMP and applicable laws, rules, and regulations. Eighty percent (80%) of our respondents who are ECC grantees for ECPs  said that there was monitoring done to assure compliance with the conditionalities specified in their ECCs. The rest maintained that until now, no monitoring was made. However, of those who responded that there was monitoring, only twenty-five percent (25%) answered that it was the MMT who conducted such. Seventy-five (75%) signified that it was the DENR through the EMB or the CENRO who visited them for monitoring.

This shows that an MMT is rarely formed, contrary to such requirement by DAO 96-37. The proponent, in close coordination with the DENR, shall organize the MMT as early as possible prior to the construction phase of the project. However, the establishment of the MMT does not preclude EMB, the DENR – RO or the proponent from conducting its own monitoring or inspection of a particular subject. Thus, explaining the data obtained.

 The frequency of the monitoring made is not the same to the all respondents referred to above. Twenty-five percent (25%) of them said that they underwent environmental monitoring by the agency/group concerned only once. Fifty  percent (50%) of them said that they were visited twice for monitoring. And, another twenty-five percent (25%) expressed that the monitoring was done more than twice (6-8 times). With this irregularity, how can a project be efficiently monitored? Is this a valid exercise of sound judgment and discretion by the monitoring team or by the DENR? Are they given such discretion in the first place?

 For projects located in an ECA, the monitoring of compliance with the conditionalities in the ECCs issued, and those issued pursuant to applicable laws, rules and regulations, shall be undertaken by the concerned PENRO and CENRO with support from the Regional Office and/or EMB whenever necessary. This is provided by Section 10(b), Article IV of DAO 96-37. The data obtained by the group show that eighty  percent (80%) of the respondents who are ECC grantees for projects located in an ECA imparted that there was monitoring conducted  to check if they have complied with the conditions specified in their ECCs. Such was done by the EMB. Twenty percent (20%), on the other hand, said that their no monitoring was conducted in the any stage of  the project’s implementation. Half of the mentioned respondents who had undergone monitoring said that they were monitored only once during the entire duration of the project, while the other half expressed that they were monitored twice. Hence, there is still no uniformity in the frequency of monitoring activities. The previous observation still holds water.
 

VIII. CONCLUSIONS

After careful analysis of the pertinent laws and of the data gathered, the group drew the following conclusions:

1. There is lack of information on the matter of Environmental Compliance Certificates and Certificates of Non-Coverage, their purpose, and procedure. Consequently, there are a number of project proponents who are able to secure their ECC or CNC when the project is already implemented.

2. The non-exclusive character of the enumeration of projects considered as environmentally critical and those located in an environmentally critical area as stated in DAO 96-37 pursuant to Proclamation No.2146 as basis is not clearly established. The list would appear and has continued to appear exclusive because of the failure of the DENR to add to, redefine, or modify such, as permitted by the law.

3. The DENR’s discretion to identify a project as an ECP or a project located in an ECA or one not covered by the EIS System, is arbitrary and capricious for the DAO 96-37 and other pertinent laws do not provide particular guidelines to follow to enable them to classify a project. There are no sufficient and specific definitions of an ECP, ECA, or a project not covered by the EIS System either. 

4. Since there is no clear guideline in determining whether a proposed activity should undergo the rigors of the EIS system, some project proponents (like LGUs) as well the DENR/EMB got the wrong idea about the proper operation of the EIS System.

5. The load of requirements is reasonable and necessary for an ECC/CNC. However, the length of time needed to secure them and the whole process of application until the issuance of the ECC/CNC takes a long time. Hence, such time needed to secure the needed certificate must form a part of the time table for the project. Otherwise, it would cause a delay resulting to financial losses to the project proponent.

6. Avoidance of further delays in the project is one of the main reasons why projects continue to be implemented without the ECC/CNC.

7. Many of the proponents are not aware of the reasons why they are to obtain an ECC and how they are classified (ECP or ECA).
8. There are projects requiring an ECC when they do not belong to either category, ECP or a 
project in an ECA as defined and enumerated by law.

9. Despite hesitations, proponents tend to simply comply with the requirement of obtaining an ECC in order not to cause further delay, even though they could have applied for a CNC.

10. The general criterion followed by the EIA Review Committee in the evaluation of the EIS document is too broad.  It does not lay down specific guidelines, thus, giving the Review Committee members a wide discretion in deciding over the matter. Such exercise of discretion is arbitrary in the absence of special laws specifying the scope of such power, its boundaries, and particular guidelines for its exercise. 

11. The general criteria mentioned above are not mandatory but merely directory since the Review Committee may require submission of additional information or requirements needed to provide elaboration or classification of some aspects of the EIA study.

12. The submission of the EIARC is mandatory. However, the findings of the Review Committee are not conclusive since it is still subject to review and evaluation by the EIA Division Head of the EMB or the DENR personnel concerned. Again, the latter’s recommendation is not conclusive since the EMB Director shall make his own recommendation to the Office of the DENR Secretary, in the case of an ECP, or of the DENR Regional Executive Director, in the case of an ECA. 

13. Some government agencies or offices, pursuant to special laws or rules and regulations, automatically require the project proponents to secure an ECC as one of the requirements before given an approval or permit by said body. Thus, there appears to be no uniformity in the laws, causing confusion among the project proponents, and stimulating conflicts with the DENR.

14. Not all projects in an ECA are required to submit an IEE. Small projects are only made to sign IEE checklists. 

15. Scoping requirement is absent if the project is not an ECP, unless the project in an ECA is further required to undergo an EIS. Hence, the proponent of a project located in an ECA is not required to undergo said process.

16. The initial review of IEE documents is lodged only on the DENR – Regional Office (EMPAS) Screening Officer.

17. In practice, the IEE is only reviewed on paper. The requisite of validation through inspections under Section 21, Article 3 of DAO 96-37is usually done to big projects only due to lack of DENR – RO (EMPAS) personnel.

18. A proponent of a project located in an ECA is further required to undergo an EIS under the following conditions:
a. presence of significant environmental impacts that have not been adequately addressed by proposed mitigation and enhancement measures;
b.presence of strong public opposition or low social acceptability;
presence or possibility of high public risk;
c. the project involves the use, manufacture, storage or transport of highly pollutive substances, toxic or hazardous materials; or
d. presence of significant socio-cultural impacts.

18. Projects under Kalakalan 20 are exempted from the coverage of the EIS System.  This might somehow defeat the purpose of the EIS System.

19. Compliance monitoring is not strictly and regularly done. This could be attributed to the lack of personnel in the EIA Division of the EMB. Such occurrence renders the EIS System inutile. 
 

IX. RECOMMENDATIONS
 

 With the foregoing conclusions, the proponents of this study recommend the following:

1.  That information campaigns should be made about the EIS system to different government agencies or offices, establishments, corporations, engineers, and to the general public.

2. That the DENR should regularly add to, modify, or redefine the enumeration indicated in Section 1 (a), Article 2 of DAO 96-37 for environmentally critical projects and in Section 1 (b), Article 2 of the same law for projects located in environmentally critical areas, as expressed in the Procedural Manual of DAO 96-37. This is to cope with the rapid technological advancements resulting to the creation of various potential projects that may cause significant negative impacts in the environment.

3.  If the above-mentioned recommendation  cannot be had, that specific guidelines should be provided by law to be followed by the DENR in classifying a project as environmentally –critical , or one in an ECA, or a project not covered by the EIS System. This would avoid a whimsical or capricious exercise of discretion on the part of the said agency.

4. That a new law should be promulgated to provide for a more complete, specific, and inclusive definition of an Environmentally Critical Project, an Environmentally Critical Area, and a Project Not Covered By The EIS System, unlike the vague definitions provided or by DAO 96-37.

5. That, notwithstanding the ambiguity in the criteria set forth in  DAO 96-37 and statutes to determine whether a proposed activity should  undergo the rigors of the EIS System, all projects (whether carried out by LGUs), when proper, should be required to go through the process to ensure the protection of the environment.  Projects should not be exempted from the EIS system for the sole reason that its proponent is an LGU.  It is not the proponent but the project itself that should be the foundation in resolving when such is covered by the EIS System.

6.  That the DENR should generate a list of projects/undertakings that other government agencies, under special laws, require submission of ECCs and CNCs for a more organized procedure. 

7.  That there should be specific guidelines to be followed by the EIA Review Committee in undertaking the substantive review of a proposed project, basing on their fields of expertise. 

8.  That all projects located in environmentally critical areas should be required to submit an IEE document. Thus, the use of IEE checklists should be discontinued. This is to give due attention to all projects alike because regardless of their size, they all signify negative impacts to the environment. 

9.   That scoping should also be mandatory to both ECP and projects located in an ECA in order to know beforehand the concerns of the stakeholders or the parties affected by the project and the environmental issues needed to be given importance. 

10.  That there should be more DENR personnel to be assigned as IEE Screening Officers so that all the projects would be carefully reviewed and validated.

11. That projects under Kalakalan 20 should not be automatically exempted from the EIS System because when they are collectively located in the same area, they would cause a degree of negative environmental impact comparable to other projects covered by the said System. 

12. That monitoring should be religiously done in order to check if the project proponent has complied with the conditionalities stated in the ECC. Otherwise, the purpose of the ECC which is to ensure that the project or undertaking will not cause a significant negative environmental impact would be defeated.
 
 

X.  Appendix

A. PRESIDENTIAL DECREE NO. 1151
PHILIPPINE ENVIRONMENTAL POLICY

B. PRESIDENTIAL DECREE NO. 1586
ESTABLISHING AN ENVIRONMENTAL IMPACT STATEMENT SYSTEM, INCLUDING OTHER ENVIRONMENTAL MANAGEMENT RELATED MEASURES AND FOR OTHER PURPOSES

C. PROCLAMATION NO. 2146
PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS ENVIRONMENTALLY CRITICAL AND WITHIN THE SCOPE OF THE ENVIRONMENTAL IMPACT STATEMENT SYSTEM ESTABLISHED UNDER PRESIDENTIAL DECREE NO. 1586

E. REPUBLIC ACT NO. 6810 
AN ACT ESTABLISHING THE MAGNA CARTA FOR COUNTRYSIDE AND BARANGAY BUSINESS ENTERPRISES, GRANTING EXEMPTIONS FROM ANY AND ALL GOVERNMENT RULES AND REGULATIONS AND OTHER INCENTIVES AND BENEFITS THEREFOR, AND FOR OTHER PURPOSES 
 

F.  PROCEDURAL REVIEW FLOW CHART

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G.  SUBSTANTIVE REVIEW FLOWCHART

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