Ecowaste Coalition, et al. vs. Secretary Roy Cimatu

Dimaampao, J.:

Before the Court is a Petition for Certiorari¹ under Rule 65 of the Rules of Court, with a prayer for the issuance of an environmental protection order filed by petitioners Ecowaste Coalition, Interfacing Development Interventions for Sustainability, Jayvie Cabajes, Anecita Abadijas, Kisha Erah Muaña, Ma. Erlinda Coleen Salamat, and Francisco Dangla III (Ecowaste Coalition et al.), impugning the validity and constitutionality of Department Administrative Order (DAO) No. 2019-21 (DAO 2019-21), otherwise known as the "Guidelines Governing Waste-to-Energy (WtE) Facilities for the Integrated Management of Municipal Solid Wastes,"² issued by former Secretary Roy Cimatu (Secretary Cimatu) of the Department of Environment and Natural Resources (DENR).³

The pertinent facts are as follows:

On August 12, 2014, the National Solid Waste Management Commission (NSWMC) adopted Resolution No. 90, Series of 2014,⁴ creating a multi-agency sub-group to develop guidelines on the establishment and operation of waste-to-energy technologies in the country. This sub-group is composed of representatives from the following agencies and sectors:

1. Department of [the] Interior and Local Government- Bureau of Local

Government Supervision (DILG-BLGS); 2. Department of Environment and Natural Resources - Environmental Management

Bureau (DENR-EMB); 3. Department of Science and Technology - Industrial Technology and Development

Institute (DOST-ITDI);

4. Department of Energy (DOE) 5. Department of Trade and Industry - Board of Investments (DTI-BOI); 6. Department of Agriculture - Bureau of Animal Industry (DA-BAI); 7. Department of Health - Environmental and Occupational Health Office (DOH-

EOHO); 8. Department of Public Works and Highways (DPWH); 9. Metropolitan Manila Development Authority (MMDA); 10. Climate Change Commission (CCC); and 11. Recycling Industry.⁵

Ecowaste Coalition, along with its constituent non-governmental organizations and environmental groups, namely: Global Alliance for Incinerator Alternatives, Greenpeace Southeast Asia, Mother Earth Foundation, and Health Care Without Harm, among others, conveyed their objections to the sub-group's efforts to formulate the regulatory framework for waste-to-energy facilities.⁶ Despite their objections, the NSWMC issued Resolution No. 669, Series of 2016,⁷ which laid down the guidelines governing the establishment and operation of waste-to-energy technologies for municipal solid wastes.

Thereafter, the DENR-EMB conducted a series of public consultations regarding the waste-to-energy guidelines in Mandaluyong City,⁸ Cebu City,⁹ and Davao City.¹⁰

In due course, Secretary Cimatu approved and signed DAO 2019-21 on November 26, 2019, adopting the NSWMC's guidelines for the establishment and operation of waste-to-energy facilities in the Philippines under Resolution No. 669, Series of 2016. It declared the following State policy:

[T]o adopt a systematic, comprehensive[,] and ecological solid waste management program which shall ensure the protection of public health and environment[,] and set the guidelines and targets for solid waste avoidance and volume reduction through source reduction and waste minimization measures, including composting, recycling, re-use, recovery, green charcoal process, and other schemes, before collection, treatment[,] and disposal in appropriate and environmentally-sound solid waste management facilities[.] ¹¹

Section 4(z) of DAO 2019-21 defined waste-to-energy as "the process of converting wastes with various technologies, usually the conversion of non-recyclable waste materials into useable heat, electricity, or fuel through a variety of processes."¹²

Eventually, Secretary Cimatu's issuance of DAO 2019-21 gave rise to proposals for the establishment of waste-to-energy facilities all over the Philippines, including Quezon City, Puerto Princesa City, Urdaneta City, Baguio City, Laoag, New Clark City, Hermosa, Mariveles, Manila, Lipa, Silang, Nasugbu, Dagupan, Angeles City, Mabalacat City, San Jose, Cebu City, Tacloban City, Dumaguete City, Cagayan De Oro City, Davao City, and Tagum City.¹³

Disappointed with the turn of events, Ecowaste Coalition and No Burn Philippines sent a "Notice to Sue"¹⁴ to the DENR, calling on Secretary Cimatu to rescind DAO 2019-21 or face legal action. Notwithstanding the said notice, the DENR-EMB issued Memorandum Circular No. 2020-23,¹⁵ which clarified the requirements of waste-to-energy projects relative to applications for the issuance of environmental compliance certificates pursuant to DAO 2019-21.¹⁶

The DENR's actions prompted Ecowaste Coalition et al. to file the present Petition directly before this Court on June 8, 2021. Primarily, they ascribe grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Secretary Cimatu in issuing DAO 2019-21, as it contravened existing environmental statutes such as Republic Act No. 8749,¹⁷ Republic Act No. 9003,¹⁸ and Republic Act No. 9513.¹⁹ Ecowaste Coalition et al. also avouch that Secretary Cimatu's act violated not only the public trust doctrine, but also the people's rights to health and a balanced and healthful ecology enshrined in Article II, Sections 15²⁰ and 16²¹ of the Constitution.²²

Through the Resolution²³ dated August 3, 2021, the Court En Banc required Secretary Cimatu to file his comment on Ecowaste Coalition et al.'s certiorari petition and application for environmental protection order. Subsequently, the Office of the Solicitor General (OSG) filed a Comment²⁴ on his behalf.

Petitioners' Arguments

Ecowaste Coalition et al. asseverate that they possess the requisite locus standi, since they are suing not only based on the direct violation of their personal rights to health and a balanced and healthful ecology, but also on the public right to assail an illegal executive action of the DENR.²⁵

Likewise, Ecowaste Coalition et al. aver that beyond being a case of first impression, their petition involves genuine issues of constitutionality that must be addressed at the most immediate time, issues of transcendental importance, and questions that are dictated by public welfare and the advancement of public policy, thereby necessitating direct recourse to this Court. They entreat the Court to give due course to their petition, considering that the risks and effects of the possible construction of waste-to-energy facilities pursuant to DAO 2019-21 have far-reaching implications on the people's health and the environment.²⁶

Anent the requirement of an actual case or controversy, Ecowaste Coalition et al. insist on the justiciability of the issues in this case, given that DAO 2019-21 palpably contravenes the Constitution.²⁷

Ecowaste Coalition et al. also ascribe grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Secretary Cimatu in issuing DAO 2019-21, which purportedly runs counter to the aforementioned environmental laws, and even violates the public trust doctrine and the people's constitutional rights to health and a balanced and healthful ecology. Relatedly, DAO 2019-21 fails to comply with the requisites of a valid administrative order.²⁸

In particular, Ecowaste Coalition et al. aver that despite the clear provisions of Republic Act No. 8749 and Republic Act No. 9003 prohibiting incineration, DAO 2019-21 implicitly permits the use thereof by allowing thermal waste-to-energy facilities under Section 6.3(c) thereof,²⁹ viz.:

c) In coordination with [EMB], WtE facilities utilizing thermal process (whether burn or non-burn) must conduct sampling and analysis for dioxins and furans based on EMB Memorandum Circular No. 2007-003 (Policy on Compliance and Permitting for Industrial Facilities Relating to Air Quality) following the prescribed methodology[.]³⁰

By recognizing the validity of thermal waste-to-energy facilities, DAO 2019-21 violates the constitutional rights to health and a balanced and healthful ecology, as such facilities employ incineration processes which are known to generate harmful by-products, such as dioxins and furans, causing adverse health effects to humans.³¹ To bolster their point, Ecowaste Coalition et al. submit the Judicial Affidavit³² of Dr. Jorge Emmanuel, a member of the Technical Working Group which drafted the Stockholm Convention on Persistent Organic Pollutants.

In any case, even if DAO 2019-21 derives life from the foregoing environmental laws, none of them are complete or sufficient to authorize Secretary Cimatu to issue the subject administrative regulation.³³

Ecowaste Coalition et al. further maintain that Secretary Cimatu did not comply with the requirement under Article XIII, Section 16³⁴ of the Constitution of holding genuine and bona fide adequate consultations with public or non-governmental groups. Although they were previously invited to provide their feedback on waste-to-energy technologies, their comments were not at all considered by Secretary Cimatu and the DENR in drafting DAO 2019-21.³⁵

Ecowaste Coalition et al. also submit that Secretary Cimatu, as head of the DENR failed in his duty to protect the environment from activities that pose irreversible damage in accordance with the public trust doctrine.³⁶

Finally, Ecowaste Coalition et al. beseech the Court to issue an environmental protection order enjoining the DENR from implementing DAO 2019-21, which would ostensibly cause harm to public health and the environment.³⁷

Respondent's Arguments

For his part, Secretary Cimatu seeks the dismissal of Ecowaste Coalition et al.'s Petition for being riddled with procedural errors. Foremost, Ecowaste Coalition et al. do not have the requisite locus standi to assail DAO 2019-21.³⁸ Secretary Cimatu avers that "[i]t does not suffice for [Ecowaste Coalition et al.] to merely allege a motherhood statement that their 'personal rights to a balanced and healthful ecology' has supposedly been violated."³⁹

Moreover, Secretary Cimatu claims that Ecowaste Coalition et al. violated the doctrine of hierarchy of courts by directly resorting to this Court, considering that they raised some arguments which call for the reception and evaluation of evidence.⁴⁰

Secretary Cimatu likewise asserts that there was no grave abuse of discretion on his part in issuing DAO 2019-21. The subject issuance's alleged violations of the laws and the public trust doctrine, and "threat" to the constitutional rights to health and a balanced and healthful ecology are unfounded and baseless.⁴¹ "[Ecowaste Coalition et al.'s] allegation[s] [deserve] scant consideration inasmuch as they have not cited any definitive study on the specific topic of WtE technologies."⁴²

As well, Secretary Cimatu points out that aside from a general academic reference, Ecowaste Coalition et al. did not present any substantial evidence and scientific basis to substantiate their claim that the operation of waste-to-energy facilities would result in the emission of harmful dioxins and furans in the atmosphere. Specifically, they did not set out the specific levels of emission from a waste-to-energy facility that may cause environmental damage or threaten the ecological balance.⁴³

Secretary Cimatu also underscores that the proposed waste-to-energy facilities would be patterned after the best practices of developed countries, such as Japan and the United States, undoubtedly showing that the same would not be ecologically destructive, contrary to what Ecowaste Coalition et al. claim.⁴⁴ In any event, the promulgation of DAO 2019-21 constitutes a valid exercise of subordinate legislation, having been issued in accordance with the DENR's rule-making power⁴⁵ under Executive Order No. 192, Series of 1987.⁴⁶

More importantly, DAO 2019-21 does not violate the ban on incineration under the laws mentioned. Secretary Cimatu anchors his claim on Metropolitan Manila Devt. Authority v. Jancom Environmental Corp.,⁴⁷ where the Court pronounced that "Section 20 [of Republic Act No. 8749] does not absolutely prohibit incineration as a mode of waste disposal; rather only those burning processes which emit poisonous and toxic fumes are banned."⁴⁸ Secretary Cimatu contends that Ecowaste Coalition et al. were not able to present any factual or legal justification to support their argument that the abovementioned laws prohibit incineration of any kind.⁴⁹

Withal, Secretary Cimatu submits that despite Ecowaste Coalition et al.'s insistence to the contrary, the DENR-EMB held public meetings and consultations on DAO 2019-21.⁵⁰

Lastly, in opposing Ecowaste Coalition et al.'s bid for an environmental protection order, Secretary Cimatu argues that they failed to show extreme urgency for the issuance of such order. They also failed to establish the grave injustice and irreparable injury that would cause them if an environmental protection order was not issued.⁵¹ Besides, there is yet to be a fully operational waste-to-energy facility in the country under DAO 2019-21, rendering the instant case premature.⁵²

Recent Developments

Since the issuance of DAO 2019-21, several local government units (LGUs) across the country, such as Davao City, Cebu City, and Quezon City,⁵³ have entered into joint venture agreements or considered proposals for the development of waste-to-energy facilities.⁵⁴ As of October 2024, there are around 23 proposals on the construction of waste-to-energy facilities in the Philippines.⁵⁵ Nevertheless, some LGUs, such as Baguio City, discontinued their waste-to-energy projects.⁵⁶

Meanwhile, under its new leadership, the DENR has circulated a draft administrative order on the adoption of site identification and screening criteria for waste-to-energy facilities utilizing municipal solid wastes.⁵⁷ During the 19th Congress, a Waste-to- Energy Bill was approved on third reading before the House of Representatives, while its counterpart measure in the Senate remained pending at the plenary level.⁵⁸

Too, the DENR, represented by Secretary Raphael P.M. Lotilla, stands by the Comment earlier filed by Secretary Cimatu.⁵⁹ They also add that the exclusion of incineration from resource recovery facilities under Republic Act No. 9003 applies to recyclable materials, not to waste processing of residuals and other special wastes.⁶⁰

Issues

From the foregoing, the determination of the outcome of this petition rests on the resolution of the following procedural issues:

First. Whether Ecowaste Coalition et al. possess the requisite locus standi to file the present Petition;

Second. Whether Ecowaste Coalition et al. failed to comply with the rule on hierarchy of courts; and

Third. Whether an actual and justiciable controversy exists in this case.

On the other hand, the substantive issues are as follows:

One, whether Secretary Cimatu gravely abused his discretion amounting to lack or excess of jurisdiction in issuing DAO 2019-21;

Two, whether Ecowaste Coalition et al. were able to prove that DAO 2019-21 and the possible construction of waste-to-energy facilities will cause grave harm to the people's constitutional rights to health and a balanced and healthful ecology; and Three, whether Ecowaste Coalition et al. are entitled to the issuance of an environmental protection order.

Ruling of the Court

Upon judicious rumination, the Court resolves to dismiss petitioners' Petition for Certiorari for violating the doctrine of hierarchy of courts. Ergo, the prayer for the issuance of an environmental protection order is denied.

At the outset, the Court recognizes that petitioners have locus standi to file the present Petition. The concept of locus standi was explained by the Court in the case of Colmenares v. Energy Regulatory Commission,⁶¹ as follows—

The requirement of legal standing, or "locus standi," is defined as a party's right or interest to appear in court to bring a particular issue. Such interest must be direct, personal, and material and the petitioner "must be able, to show, not only that the law or any government act is invalid, but also that he [or she] sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he [or she] suffers thereby in some indefinite way."⁶² (Citations omitted)

As the Court clarified in the landmark case of Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary Reyes,⁶³ locus standi in environmental cases has been given a more liberalized approach in our jurisdiction. To this end, Rule 2, Section 5 of the Rules of Procedure for Environmental Cases expressly allows a "citizen suit," and permits any concerned Filipino citizen to file an action before the courts for violations of environmental laws:

SEC. 5. Citizen suit. – Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order.

Citizen suits filed under [Republic Act] No. 8749 and [Republic Act] No. 9003 shall be governed by their respective provisions.⁶⁴

In Spouses Maliones v. Timario,⁶⁵ the Court edifyingly explicated the rational for the rule on citizen suit:

Citizen suit is one of the features introduced in the Rules of Procedure for Environmental Cases that seeks to liberalize the traditional rule on standing by relaxing the requirement of personal and direct interest for all case filed to enforce environmental laws. This is intended to further encourage the protection of the environment as stewards of nature.⁶⁶ (Citation omitted)

Having alleged in their certiorari petition that DAO 2019-21 would probably cause serious harm to the people's health and the environment, the Court finds that petitioners possess the locus standi to file the instant suit.

On top of that, petitioners satisfactorily demonstrated an actual case or controversy.

It is well-settled that an actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims, which is susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.⁶⁷ As such, the Court's power of judicial review extends to cases where there is a clear and convincing showing of contrariety of legal rights,⁶⁸ characterized as the actual and antagonistic assertion of rights by one party against the other in a controversy wherein judicial intervention is unavoidable.⁶⁹

In the case at bench, the parties hold adverse positions regarding the validity of DAO 2019-21 vis-à-vis the constitutional rights to health and a balanced and healthful ecology. Such assertion, by itself, authorizes the Court to look into any probable transgression of constitutional rights resulting from the exercise of the Executive's powers.

All the same, notwithstanding the presence of an actual case or controversy and locus standi, both of which are jurisprudentially recognized as the most important requisites of justiciability,⁷⁰ the Court is constrained to dismiss the instant Petition owing to the breach of the doctrine of hierarchy of courts.

The doctrine of hierarchy of courts acknowledges that the Court is one of last resort, and must remain so for it to effectively perform its constitutional functions.⁷¹ On this score, the following disquisition in Colmenares is quite illuminating:

The doctrine of' hierarchy of courts "is a practical judicial policy designed to restrain parties from directly resorting to this Court when relief may be obtained before the lower courts." It is a "constitutional filtering mechanism" which allows the Court to dismiss petitions which can be litigated in lower courts with concurrent jurisdiction. Dismissal of a petition for its failure to comply with the hierarchy of courts is an avoidance mechanism and a variant of the ripeness requirement.⁷² (Emphasis supplied, citations omitted)

In Aala v. Uy,⁷³ the Court enumerated the exceptions to the doctrine of hierarchy of courts, namely: (1) when there are genuine issues of constitutionality that must be addressed at the most immediate time; (2) when the case is of transcendental importance; (3) when the case is novel or of first impression; (4) when the constitutional issues raised are better decided by the Court; (5) when time is of the essence; (6) when the subject of review concerns acts of a constitutional organ; (7) when there is no other plain, speedy, and adequate remedy in the ordinary course of law; (8) when the petition includes questions that are dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice; (9) when the order complained of is found to be a patent nullity; and (10) when the appeal was treated as an inappropriate remedy.⁷⁴

Still and all, in determining whether direct resort to the Court shall be allowed, the controlling factor is not the presence of one or more of the above-cited "special and important reasons," but rather the nature of the question raised by the parties.⁷⁵ Elsewise put, it is not the simple invocation of any of the foregoing instances which triggers the exception to the doctrine of hierarchy of courts, but the fact that only questions of law—not of fact—is involved. After all, the Court is neither a trier of facts nor equipped to receive and evaluate evidence at the first instance.⁷⁶ These are the primary functions of the lower courts and regulatory agencies, not the Court's.⁷⁷

Parenthetically, it must be stressed that only controversies involving purely legal questions may be entertained by the Court at the first instance, such that when the question entails the determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the same regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case.⁷⁸

To be sure, the common denominator in a long line of cases where exceptions to the doctrine of hierarchy of courts were allowed is that there were clear factual parameters which empowered the Court to resolve the cases without needing further information and clarifying disputed facts.⁷⁹

In the present case, the Rule 65 petition filed by petitioners does not raise purely legal questions.

By entreating the Court to strike down DAO 2019-21, petitioners also ask the Court to consider the following queries: One, whether incineration processes, which are supposedly allowed by DAO 2019-21, generate harmful by-products such as dioxins and furans;⁸⁰ and two, whether these by-products bio-accumulate in living organisms, eventually ending up in human bodies and causing severe harm to their health.⁸¹ These questions are ineludibly factual in nature because they require the presentation of evidence before the Court may resolve them.⁸² In Velayo-Fong v. Spouses Velayo,⁸³ the Court distinguishes between questions of fact and questions of law in this wise:

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it is a question of fact.⁸⁴ (Emphasis supplied, citations omitted)

Certainly, for the Court to settle the issues raised in this petition, the presentation and assessment of scientific evidence is necessary to show that the use of incineration technologies, which are supposedly permitted by DAO 2019-21 generate harmful by-products such as dioxins and furans, causing adverse health effects to humans. Petitioners should have first brought their factual questions before the proper tribunal or regulatory agency which is specially equipped to resolve them.

Indeed, in choosing to directly raise the foregoing issues before the Court, petitioners ought to have confirmed that their petition does not raise any factual queries.⁸⁵ Regrettably, they failed to do so, making their immediate resort to this Court unjustified.

A final cadence. The Court takes this opportunity to accentuate the importance of faithful adherence to the doctrine of hierarchy of courts, viz.:

It is well to remember that the Court is not a trier of facts. Whether in its original or appellate jurisdiction, this Court is not equipped to receive and weigh evidence in the first instance. When litigants bypass the hierarchy of courts, the facts they claim before the Court are incomplete and disputed. Bypassing the judicial hierarchy requires more than just raising issues of transcendental importance. Without first resolving the factual disputes, it will remain unclear if there was a direct injury, or if there was factual concreteness and adversariness to enable this Court to determine the parties' rights and obligations. Transcendental importance is no excuse for not meeting the demands of justiciability.⁸⁶ (Emphasis supplied, citation omitted)

In light of the glaring violation of the doctrine of hierarchy of courts, the Court discerns no cogent reason to delve into the merits of the substantive disputations raised by petitioners.

* On leave.

** On official business but left a concurring vote.

*** On official business.

SEPARATE CONCURRING OPINION

Leonen, Saj:

I commend the ponente for the well-reasoned decision and concur to dismiss the petition. Nevertheless, allow me to take this occasion to discuss the following points.

While the protection of our environment and the constitutional right to a balanced and healthful ecology commands the highest respect, petitioners' chosen procedural course regrettably undermines their own objectives. This case serves as an important reminder that even the most righteous cause must be pursued through the adherence to the proper legal channels.

The petitioners, led by Ecowaste Coalition, seeks to nullify the Department of Energy and Natural Resources Administrative Order No. 2019-21 (DAO 2019-21).¹ They argue that the governing guidelines for waste-to-energy facilities under DAO 2019-21 sanctioned technologies that constitute incineration, which is prohibited under Republic Act No. 8749 (Philippine Clean Air Act of 1999) and Republic Act No. 9003 (Ecological Solid Waste Management Act of 2000). Consequently, petitioners claim that DAO 2019-21 is violative of the people's fundamental right to a balanced and healthful ecology.²

The ponencia dismissed the petition primarily for violating the doctrine of hierarchy of courts.³ It deemed that petitioners had locus standi to file the petition and that an actual case or controversy existed.⁴ However, the ponencia determined that the case was not fit for direct recourse to the Supreme Court for presenting factual questions.⁵ As observed by the ponente, the petition raised questions of fact rather than purely legal questions, specifically: (1) whether the incineration processes permitted by DAO 2019-21 generate harmful by-products like dioxins and furans; (2) whether these by-products cause severe harm to human health.⁶ The ponencia ruled that such factual and scientific controversies must first be brought before the proper tribunal equipped to resolve them.⁷

I concur in the result. However, I offer these observations regarding the existence of an actual case or controversy and the standards of locus standi.

I

The following essential requisites of justiciability must be present for this Court to exercise its power of judicial review of a law or an executive act: (1) there must be an actual case or controversy; (2) petitioners must possess locus standi; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the resolution of the question is unavoidably necessary to the decision of the case itself.⁸

In the list of requisites, the presence of an actual case or controversy is the most significant.⁹ An actual case or controversy exists when (a) there are facts to enable courts to intelligently adjudicate the issues; or (b) there is a clear and convincing showing of a contrariety of legal rights.¹⁰ To add, there is an actual case or controversy when there is real conflict of rights or duties arising from actual facts, properly established in court through evidence or judicial notice, and not merely based on speculation or imagination. It was explained:

Without the existence and proper proof of actual facts, any review of the statute or its implementing rules will be theoretical and abstract. Courts are not structured to predict facts, acts or events that will still happen. Unlike the legislature, we do not determine policy. We read law only when we are convinced that there is enough proof of the real acts or events that raise conflicts of legal rights or duties. Unlike the executive, our participation comes in after the law has been implemented. Verily, we also do not determine how laws are to be implemented.

The existence of a law or its implementing orders or a budget for its implementation is for from the requirement that there are acts or events where concrete rights or duties arise. The existence of rules do not substitute for real facts.¹¹

Nevertheless, despite the absence of actual facts, an actual case or controversy can still exist when there is a clear and convincing showing of a contrariety of legal rights. That is, the controversy must "involve a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute."¹² In Calleja v. Medialdea:¹³

An actual case or controversy exists when there is a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. The issues presented must be definite and concrete, touching on the legal relations of parties having adverse interests. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence[.]¹⁴ (Citations omitted)

Mendoza v. Pilipinas Shell Petroleum Corp.¹⁵ clarified that to establish a contrariety of rights, the controversy demands not only a mere allegation of potential conflict, but also that the assailed measure has resulted in a concrete and demonstrable breach of rights, such that no interpretation other than unconstitutionality is possible. Moreover, for a true contrariety of rights to arise, there must be an actual and unavoidable collision between fundamental rights, such that the enforcement of one necessarily entails the violation of the other. In such a situation, the Court is called upon to determine which right prevails, as no harmonization is possible. Mendoza laid down the exceptional circumstances when a contrariety of rights is found:

The first involves a statute that flagrantly violates freedom of expression and its cognate rights.

. . . .

Freedom of expression occupies a privileged position in the hierarchy of civil freedoms, as it is indispensable to a democratic government. It enables citizens to participate meaningfully in public affairs by conveying their thoughts and opinions[.]

. . . .

Consequently, a facial challenge is permitted in cases involving freedom of expression and its cognate rights to prevent prior restraint on free speech or overbroad language that has a chilling effect on free speech[.]

. . . .

The second scenario permits judicial review when a violation of fundamental rights is so egregious or so imminent that judicial restraint would lead to serious violations of fundamental rights. To be deemed egregious, the violation must be so pervasive that virtually any citizen could raise the issue. In Parcon-Song v. Parcon, this Court held:

There are exceptions, namely: (a) when a facial review of the statute is allowed, as in cases of actual or clearly imminent violation of the sovereign rights to free expression and its cognate rights; or (b) when there is a clear and convincing showing that a fundamental constitutional right has been actually violated in the application of a statute, which are of transcendental interest. The violation must he so demonstrably and urgently egregious that it outweighs a reasonable policy of deference in such specific instance. The facts constituting that violation must either be uncontested or established on trial. The basis for ruling on the constitutional issue must also be clearly alleged and traversed by the parties. Otherwise, this Court will not take cognizance of the constitutional issue, let alone rule on it.

The third scenario is when a constitutional provision invokes emergency or urgent measures. These measures, by their nature, are temporary, allowing them to avoid judicial review even if the issue is capable of repetition. Waiting for an actual dispute or injury to occur may only result in irreversible damage or harm to an individual; yet, with the risk that the measure would be repealed or rendered obsolete, filing a lawsuit or seeking judicial recourse would be futile. As such, this Court may, despite no actual facts, proceed to determine the applicable doctrine on the assailed provision. This includes challenges on the suspension of the privilege of the writ of habeas corpus, the declaration of martial law, and the exercise of emergency powers.¹⁶ (Emphasis supplied, citations omitted)

In light of this, petitioners attempt to demonstrate actual controversy by asserting adverse positions regarding the validity of DAO 2019-21 vis-à-vis the fundamental rights to health and a balanced and healthful ecology.

The ponencia is correct in recognizing that such assertions, when they demonstrate a clear and convincing contrariety of legal rights, may indeed establish an actual case or controversy.¹⁷ More specifically, petitioners' allegations may fall under the second scenario—a violation of fundamental rights is so egregious or so imminent that judicial restraint would lead to serious violations of fundamental rights. However, it bears stressing that for a true contrariety of rights to exist, there must be an unavoidable collision between two legal rights where no other interpretation is possible save for unconstitutionality of the assailed measure.¹⁸

Petitioners' assertions did not meet this. While they invoke fundamental rights, they failed to demonstrate an actual and egregious violation of these rights, thus failing to fall within the narrow exception of judicial review. The assailed issuance does not, by itself, impair the fundamental right to a balanced and healthful ecology. It is neither apparent that it would cause environmental degradation nor poses a demonstrable threat.

Moreover, while the right to a balanced and healthful ecology has been reorganized as fundamental, it is more challenging to establish a clear and convincing contrariety of such right, as compared to the more specific and absolute constitutional right to life.¹⁹ As articulated in Oposa v. Factoran, Jr.,²⁰ the right to a balanced and healthful ecology is of such magnitude that "it concerns nothing less than self-preservation and self-perpetuation," encompassing the "rhythm and harmony of nature" and the "judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources."²¹ Its broad scope and the correlative duty to protect it is shaped by actual environmental conditions, scientific evidence, and the specific factual milieu of each case. Thus, a violation of this right cannot be presumed from the mere existence of a policy or regulatory framework.

Furthermore, Calleja requires a definite and concrete conflict of legal rights, not one that remains dependent on uncertain future events.²² In this case, the acts cited by petitioners fall short of this standard as their assertions are prospective and speculative. Although DAO 2019-21 may have given rise to proposals or preliminary agreements among local government units,²³ this does not establish the existence of a justiciable controversy grounded on a contrariety of legal rights. Such proposals and joint venture agreements are mere preparatory steps. They do not equate to actual implementation nor produce direct, immediate, or unavoidable injury to petitioners' asserted rights.

II

I do not concur with the ponencia that petitioners possess the requisite locus standi to invoke the Court's judicial review.

Petitioners anchor their legal standing on the alleged violation of their constitutional right to a balanced and healthful ecology. They further invoke the liberal stance that this Court has allowed in environmental cases, citing jurisprudence on citizen suits.

The arguments are not persuading.

As a rule, locus standi dictates that a party demonstrate a "personal and substantial interest in the case such that [they have] sustained, or will sustain, direct injury as result of the governmental act that is being challenged."²⁴ Moreover, it must be a present and substantial interest, not a "mere expectancy or a future, contingent, subordinate, or consequential interest."²⁵

In exceptional cases, this Court has relaxed the rule on legal standing for "nontraditional suitors" such as taxpayers, legislators, or concerned citizens for matters of transcendental importance. It has recognized standing for (1) taxpayers, upon showing of illegal disbursement of public funds or that the tax measure is unconstitutional; (2) voters, when there is obvious interest in the validity of an election law; (3) concerned citizens, when the issues raised are of transcendental importance; and (4) legislators, when their prerogatives as legislators are infringe by official action. ²⁶

In this case, petitioners failed to discharge their burden. Their alleged injuries are premised on hypothetical scenarios that if facilities are built and operated under the assailed issuance, it would emit dioxins, furans, and other harmful by-products that may endanger human health and the environment. These are contingent on future events that may or may not occur. Such speculative assertions do not satisfy the requirement of an actual or imminent injury required to confer standing.

Also, petitioners' reliance on environmental citizen suits does not cure this defect. While the Rules of Procedure for Environmental Cases allow citizen suits, such remedy still presupposes a showing of an actual or threatened violation of environmental law. In Oposa, the Court recognized the standing of minors and concerned citizens in view of the actual deforestation caused by existing timber license agreements at that time.²⁷ Also in Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes,²⁸ the Court entertained the petition as the ongoing oil exploration activities posed a direct threat to marine life. In that case, the Court found that the petition showed "possible violations of laws concerning the habitat of the Resident Marine Mammals."²⁹ In both cases, the assailed acts had concrete and demonstrable environmental consequences.

In contrast, petitioners in this case have failed to identify any specific act or omission that presently violates, or imminently threatens to violate, their environmental rights.

Moreover, Ecowaste Coalition's organizational standing is weak. It appears before this Court as an association purporting to represent its members, but consistent with the Court's ruling in National Federation of Hog Farmers, Inc. v. Board of Investments,³⁰ The Provincial Bus Operators Association of the Philippines v. DOLE,³¹ and IDEALS, Inc. v. Senate of the Philippines,³² an association claiming to sue on behalf of its members must, at the very least: (1) establish who its members are; (2) present competent proof, such as board resolutions or relevant provisions of its articles of incorporation that these members have authorized it to litigate in their stead; and (3) show special reasons why the truly injured parties cannot personally appear before the Court.³³

Here, Ecowaste Coalition also failed to meet the requisites of third-party or representational standing. Petitioners did not adequately identify their members, did not demonstrate that these members are directly or imminently injured by the assailed issuance, and did not show that the members are hindered from asserting their own interests.

In fine, petitioners' asserted injuries are neither concrete nor imminent, but rests on uncertain future contingencies. Therefore, such claims are insufficient to clothe them with locus standi.

III

Even if the petitioners satisfied the requirements of an actual case or controversy and locus standi, I concur with the ponencia that their direct invocation of this Court's original jurisdiction contravenes the doctrine of hierarchy of courts.

The doctrine of hierarchy of courts demands parties to seek recourse first "from lower courts sharing concurrent jurisdiction with a higher court."³⁴ While this Court shares original and concurrent jurisdiction with lower courts, litigants are not at liberty to invoke this Court's jurisdiction at the first instance. Direct invocation of this Court's original jurisdiction should be allowed only for exceptional reasons which are clearly and specifically pleaded by a party.³⁵ In People v. Cuaresma:³⁶

This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. . . A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. . . Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it.³⁷

Petitioners claim exception from the rule asserting that the petition involves "genuine issues of constitutionality that must be addressed at the most immediate time, issues of transcendental importance, and questions that are dictated by public welfare and the advancement of public policy, thereby necessitating direct recourse to this Court."³⁸ In their urgency, petitioners prematurely filed their petition with this Court. Significantly, at the time of filing, and as remains the case today, no waste-to-energy facility under DAO 2019-21 has been constructed or become operational.³⁹ This demonstrates the absence of an imminent and irreparable injury that would require this Court's extraordinary intervention. Moreover, there was ample time for petitioners to build their case methodically and file a proper case with the Regional Trial Court, which has the authority to receive the necessary evidence and factual records and subsequently nullify the assailed administrative order.

Petitioners further characterize their case as involving purely questions of law. They contend that Republic Act No. 8749 (Philippine Clean Air Act of 1999), and Republic Act No. 9003 (Ecological Solid Waste Management Act of 2000) prohibit incineration, ⁴⁰ and that waste-to-energy technologies necessarily involve thermal processes; From this, they conclude that the technology authorized under DAO 2019-21 is unlawful for permitting incineration. However, this argument overlooks that determining whether the specific technologies in DAO 2019-21 fall within the statutory prohibition of "incineration" is inherently a question of fact.

Republic Act No. 8749 (Philippine Clean Air Act of 1999), prohibits incineration in this wise:

Section 20. Ban on Incineration. - Incineration, hereby defined as the burning of municipal, biomedical and hazardous waste, which process emits poisonous and toxic fumes is hereby prohibited: Provided, however, That the prohibition shall not apply to traditional small-scale method of community/neighborhood sanitation "siga," traditional, agricultural, cultural, health, and food preparation and crematoria[.] (Emphasis supplied)

Republic Act No. 9003 (Ecological Solid Waste Management Act of 2000), on the other hand, expressly prohibits "open burning,"⁴¹ which is defined as "thermal destruction of wastes by means of direct exposure to fire."⁴² From these provisions, it is apparent that the prohibition on incineration is anchored on the "poisonous and toxic fumes"⁴³ it may emit. Accordingly, to determine whether the guidelines in DAO 2019-21 violate these legal statutes, this Court must examine specific technological processes employed in waste-to-energy facilities, as well as the nature of their emissions. Such matters require expert testimony, cross-examination, and presentation of scientific evidence.

The Court's ruling in Abogado v. DENR⁴⁴ is instructive. Petitioner fisherfolks, with the assistance of the Integrated Bar of the Philippines, sought writs of kalikasan and continuing mandamus, alleging threat and violation of their constitutional right to balanced and healthful ecology due to environmental damage allegedly caused by foreign fishermen and construction activities in the identified area. This Court, however, dismissed the petition due to lack of evidence:

The imminence or emergency of an ecological disaster should not be an excuse for litigants to do away with their responsibility of substantiating their petitions before the courts. As with any special civil action for extraordinary writs, parties seeking the writ of kalikasan must be ready with the evidence required to prove their allegations by the time the petition is filed. Hasty slipshod petitions, filed in the guise of environmental advocacy, only serve to undermine that advocacy:

Environmental advocacy is primarily motivated by care and compassion for communities and the environment. It can rightly be a passionately held mission. It is founded on faith that the world as it is now can be different. It implies the belief that the longer view of protecting our ecology should never be sacrificed for short-term convenience.

However, environmental advocacy is not only about passion. It is also about responsibility. There are communities with almost no resources and are at a disadvantage against large projects that might impact on their livelihoods. Those that take the cudgels lead them as they assert their ecological rights must show that they have both the professionalism and the capability to carry their cause forward. When they file a case to protect the interests of those who they represent, they should be able to make both allegation and proof. The dangers from an improperly managed environmental case are as real to the communities sought to be represented as the dangers from a project by proponents who do not consider their interests.

Environmental advocacy requires more than passion for saving the environment.

. . . .

If any, the resolution of this case implies rigor in environmental advocacy. Vigilance and passion are the hallmarks of the public interest movement. There is no reason that the members of this movement should not evolve the proper skills and attitudes to properly work the legal system and understand the role of the judicial process. Environmental advocacy also requires an understanding of science and the locating of the proper place of various norms such as the precautionary principle. After all, representation of marginalized community voices deserves excellent representation and responsible leadership. Filing a judicial remedy almost two years too late and without the required scientific rigor patently required by the allegations and the arguments misses these standards.⁴⁵ (Citations omitted)

Similar to Abogado, petitioners in this case filed its petition without the requisite evidence necessary for this Court to resolve the questions raised. In by-passing the hierarchy of courts, petitioners deprived the judiciary as well as itself, of the trial court's fact-finding capacity. Verily, petitioners' strategy has resulted in delay rather than expediency. Had they first filed their petition in the appropriate trial court, they could have sought injunctive relief to halt any permit approvals and challenged the validity of the DAO 2019-21. Moreover, the lower court could have received evidence, cross-examined witnesses, and developed a factual record on the current technologies in the waste-to-energy industry. All of which are necessary to answer the complex scientific and factual questions raised in the petition.

In their zeal to protect the environment, petitioners tried to circumvent the very process designed to give their claims the fullest and fairest hearing. It is their own procedural misstep which constrains this Court to deny their prayer for an issuance of an environmental protection order.

Nevertheless, I recommend that the Petition be dismissed without prejudice to filing the petition in the proper forum.

Accordingly, I vote to DENY the Petition.