AN ATTEMPT for major buzz over the weekend on social media, outside of the highly popular and contagious #popefrancisph, is the removal of remaining trees in the continuing development of the SM City Baguio, also known as the former Pines Hotel property on Luneta Hill.
The so-called buzz is that the all mighty SM had taken advantage of all eyes on @pontifex at their Mall of Asia event and removed the last few remaining pine trees on the Baguio City development site earlier held in abeyance by a Regional Trial Court (RTC). As one tweet put it, “like a thief in the night,” hoping for some Biblical reference.
But given that the RTC had earlier found the protest against the removal of pine trees in order and last month the Appeals court upheld that ruling, hardly can there be any justification to say that SM had maliciously undertaken its action.
In a decision by the special ninth division issued last December 12, 2014 the appellate court denied the petition seeking the reversal of the lower court’s decision finding SM’s action of removing pine trees as legal and environmentally sound.
In December 2012 Branch 5 of the Baguio RTC dismissed the complaint filed in April that year when SM first started the removal of pine trees with the full permit and support of the Department of Environment and Natural Resources (DENR), as well as the local government. The lower court had then granted a Temporary Environment Protection Order (TEPO), which is like a Temporary Restraining Order (TRO) on the tree removal, while the case was being heard as is standard procedure with any court dispute.
But the RTC dismissed the petition and lifted the TEPO, prompting the complainants vs. SM to file for a reversal with the CA under CA-G.R. CV No. 100245.
In its appeal the petitioners – led by groups like Cordillera Global Network, Cordillera Peoples Alliance, Cordillera Indigenous People’s Center, Cordillera Ecological Pine Tree Center, and a host of individuals – were rebuffed by the CA which found their appeal without merit.
In its 31-page decision penned by Associate Justice Magdangal M. De Leon and concurred by Associate Justices Stephen C. Cruz and Zenaida T. Galapate-Laguilles, the CA clearly said “the appeal lacks merit” and affirmed the RTC’s decision earlier decision allowing the removal of pine trees as part of SM’s development of the area.
The CA pointed out that the three points raised by the petitioners were not warranted at all, the most significant of which was that there was no “proof of damage to the environment.” The lower court found that the complainants own environment expert – Dr. Armando M. Palijon of the University of the Philippines (UP) – was not able to establish that SM’s removal of pine trees would destroy the environment:
In contrast, while admitting that the cutting or earthballing of said trees will indeed have a negative effect on the environment, the evidence adduced by the defendants would show that it will not result to irreparable injury to the environment and detrimental to the residents of the City of Baguio.
It is worth to note that parts of testimony of the Plaintiffs’ witness, Dr. Palijon, were substantially lifted from scientific literatures. In fact, he studied the actual health of the subject trees, and assessed the mitigating measures based on the EPRMP as approved by the proper regulatory agency (TSN-28 March 2011). The witness was consulted by SMPH to study the Benguet pine and alnus trees in Luneta Hill and has examined 82 of the subject trees around two months prior March 28, 2012 (TSN, March 28, 2012, p. 11). The witness, a duly qualified tree expert (TSN, March 28, 2012, p. 5), admitted that there will, indeed be a reduction in the trees’ beneficial
contributions to the environment, if removed. He qualified, however that it is not substantial and that the environment (TSN, March 28, 2012, p. 55). He testified that there will be no hazardous effect on the health of the people of Baguio if the subject trees are taken out of the particular area where SM City Baguio is located. This is because the removal will be compensated by the green building that will be constructed, the 2.000 trees already planted in Busol Watershed and 30,000 more trees that will be planted within the next three years (TSN, March 28, 2012, pp. 14-15). Based on an article written by Nowak and Crane on oxygen production by urban trees in the United States published in the Arboriculture and Urban Forestry Journal (Exhibit 2), the witness testified that the diminution of Oxygen will not be substantial because of the removal of the 182 trees (TSN, March 28, 2012, p. 18.)
In upholding this view, the CA even chided the petitioners for basing its appeal on the TEPO issued by the lower court temporarily stopping the pine tree removal by SM while the case was being heard. The petitioners argued that the lower court’s decision was inconsistent because it had issued that TEPO.
The CA basically said the reasoning was a stretch:
We do not agree. It must be noted that the trial court granted the application for the issuance of a TEPO in order not to make any resolution of the case moot, and not because it found appellants’’ evidence stronger than that of appellees.
“Without prejudice to further or contrary action by Branch 5, I find the standards to be present in this case.
Xxx If private defendant’s act would continue, what will the environmental court be hearing thereafter? Obviously, perhaps, nothing.
Xxx. The Honorable Presiding Judge of Branch 5 may actually lift the TEPO if in his discretion there is none of the standards stated in Sec. 8 that are present in this case.”
The other two points of appeal rejected by the CA were on procedural grounds. First, it did not agree with the petitioners that there was a failure to exhaust all remedies:
Appellants justify their failure to exhaust administrative remedies on the ground that the act of the agency is patently illegal. In addition, they reason out that they were not parties to the applications for ECC, tree-cutting and earth-balling permit and building permit filed by SM.
We are not convinced.
The non-observance of the doctrine of exhaustion has been applied in cases when the patent illegality of the assailed act is clear, undisputed, and more importantly evident outright…. In this case, certain facts need to be resolved first, to determine whether the issuance of the Amended ECC, the tree-cutting and earth-balling permit and the building permit is a patently illegal act.
The next point raised by the CA in rejecting the petition is connected to SM’s alleged illegal acts, especially in its getting DENR permits and local building permits, which it said were not true whatsoever because there is a “presumption of regularity” in these administrative acts unless there is clear evidence to the contrary:
The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable intendment will be made in support of the presumption and in case of doubt as to an officer’s act being lawful or unlawful, construction should be in favor of its lawfulness.
In this case, the presumption remains unrebutted. Appellants failed to present clear and convincing evidence to the contrary, to show that issuance of the Amended ECC, the Building Permit and the Tree-Cutting and Earth-Balling Permit were tainted with irregularity.
The RTC and CA decisions are pretty clear and straightforward. And while certain so-called netizens have gone to the extremes of hurling invectives and unleashing vitriol (What else is new? As they say, haters gonna hate.) at SM and the government, the lower and appellate courts decisions are signals for reformists to be more circumspect in their approach. Screaming like a banshee will just make you loose your voice, literally and figuratively.
It is always best to have sound, well-researched, factual and studied arguments presented in a sober and intelligent manner. Irritating people – whether your opposition, government regulators and administrators or even the courts – will always end up in your face. Win people over, be inclusive and not exclusive. After all:
24 Pleasant words are a honeycomb,
Sweet to the soul and healing to the bones.
25 There is a way which seems right to a man,
But its end is the way of death.
26 A worker’s appetite works for him,
For his hunger urges him on.
27 A worthless man digs up evil,
While his words are like scorching fire.
28 A perverse man spreads strife,
And a slanderer separates intimate friends.
29 A man of violence entices his neighbor
And leads him in a way that is not good.
30 He who winks his eyes does so to devise perverse things;
He who compresses his lips brings evil to pass.
31 A gray head is a crown of glory;
It is found in the way of righteousness.
32 He who is slow to anger is better than the mighty,
And he who rules his spirit, than he who captures a city.
33 The lot is cast into the lap,
But its every decision is from the LORD.
Proverbs 16:24-33 (NASB)