SC junks plea vs DENR waste-to-energy rules

THE Supreme Court (SC) dismissed a challenge to the Department of Environment and Natural Resources’ (DENR) waste-to-energy rules, saying the petition raised scientific and factual questions that should first be resolved by a lower court. The SC en banc dismissed the petition filed by environmental groups and individuals against DENR Administrative Order (DAO) No. 2019-21, which sets guidelines for waste-to-energy facilities using municipal solid waste. The order, issued by then DENR Secretary Roy A. Cimatu in 2019, which the DAO defines as processes that convert waste, usually non-recyclable materials, into usable heat, electricity or fuel. The tribunal said the petitioners’ direct resort to the high court violated the doctrine of hierarchy of courts because their challenge did not involve purely legal questions. The petitioners argued that DAO 2019-21 was unlawful and conflicted with environmental laws, including the Clean Air Act and the Ecological Solid Waste Management Act, particularly their restrictions on incineration. But the court said determining whether the waste-to-energy technologies produce harmful by-products such as dioxins and furans requires the presentation and assessment of scientific evidence. “[W]hen 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,” the court said in a decision penned by Associate Justice Japar B. Dimaampao promulgated April 29 and made public on Sept. 17. It added that petitioners should have first brought those factual questions before the proper tribunal or regulatory agency “which is specially equipped to resolve them.” The court recognized that the petitioners had legal standing and that an actual case or controversy existed. It nevertheless dismissed the case because the petition was filed directly with the SC despite involving factual issues. “[T]he court is not a trier of facts,” the decision said, stressing that it is not equipped to “receive and weigh evidence in the first instance.” The court also rejected the argument that the case’s environmental importance justified bypassing the lower courts, saying that “transcendental importance is no excuse for not meeting the demands of justiciability.” The petition was dismissed without prejudice to its refiling before the proper forum. In his concurrence, Senior Associate Justice Marvic M.V.F. Leonen agreed with the dismissal but disagreed with the majority’s finding that the petitioners had the right to bring the case before the court. Mr. Leonen said the alleged environmental injuries were based on hypothetical future events because no waste-to-energy facility under DAO 2019-21 had been constructed or become operational. “The assailed issuance does not, by itself, impair the fundamental right to a balanced and healthful ecology,” Mr. Leonen wrote. He also said determining whether the technologies covered by the DENR order fall within statutory restrictions on incineration requires evidence on the specific processes and their emissions. Such issues, he said, require “expert testimony, cross-examination, and presentation of scientific evidence.” Mr. Leonen said the petitioners’ direct resort to the SC deprived the judiciary of the lower court’s fact-finding capacity. “In their zeal to protect the environment, petitioners tried to circumvent the very process designed to give their claims the fullest and fairest hearing,” he wrote. Mr. Leonen ultimately voted to deny the petition, while recommending that it be dismissed without prejudice to refiling before the proper forum. “It is their own procedural misstep which constrains this court to deny their prayer for an issuance of an environmental protection order,” he said. “Nevertheless, I recommend that the Petition be dismissed without prejudice to filing the petition in the proper forum.” — Mark Joseph M. Sanchez