Philippines

No litigation has been initiated in the Philippines by individuals to challenge the government’s overall climate policy for not complying with its international climate change obligations. Some cases have been filed challenging sectorial or specific laws related to climate change.

The absence of more systemic cases could be attributed, on one side, to the lack of private rights or a private right of action in the Paris Agreement or the NDC. On the other side, it could be attributed to the considerable leeway that the NDC leaves to the government in conditioning its compromises to the reception of financial resources and technology transfer following the common but differentiated responsibilities (CBDR) and respective capabilities principle.

Beyond this, some routes can be identified as possibly central to make the government accountable for its climate overall response. The Philippines has a dualist legal system, which means that international treaties must be made part of Philippine law to be valid and effective. Once it is part of domestic law, courts have the power to review its constitutionality or validity. This means that an individual who thinks that the Philippines’ NDC fails to protect their constitutional rights can pursue judicial/constitutional review. On the other hand, the National Climate Change Act 2009 established a Climate Change Commission with the function of formulating a Framework Strategy on Climate Change. The Framework identifies key sectors with significant mitigation potential and sets out goals and responsibilities for ministries and regulatory agencies but does not include quantitative targets. The law establishes that the Framework shall be formulated in accordance with international commitments. That gives the opportunity to challenge, for example, the Strategy’s level of ambition compared with the goals internationally agreed.

In this jurisdiction, one of the most relevant pathways to demand environmental protection is through the constitutional right to a healthy environment. Article II (Section 16) of the Philippines Constitution provides that “[t]he State shall protect and advance the right of the people to a balanced and healthful ecology in accordance with the rhythm and harmony of nature”. In 2009, the Philippine Supreme Court crafted a set of procedural rules to facilitate the protection of the people’s constitutionally enshrined rights to life and a healthy environment: the Rules of Procedure for Environmental Cases. They govern procedures in civil and criminal cases in the first and second-level courts that involve alleged violations of environmental laws, rules, and regulations. Particularly notable is the introduction of the Writ of Kalikasan (Writ of Nature). Petitioners can apply for a Writ of Kalikasan to be issued when the alleged environmental damage is of such magnitude that it adversely affects the life, health, or property of inhabitants in two or more cities or provinces. It is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened by an unlawful act or omission of a public official or employee, or private individual or entity.

Global Legal Action on Climate Change v the Philippine Governmentwas the first climate-related lawsuit using the Writ of Kalikasan. The action was brought to compel the government to implement a law (Republic Act 6716) and construct rainwater collectors in every village throughout the country as an effective climate adaptation measure. Eventually, a work plan was submitted to the Supreme Court and a Memorandum of Understanding was signed to carry out the construction works. Its implementation was to be subject to monitoring by the Supreme Court.

Another relevant decision is Victoria Segovia et al. v Climate Change Commission et al. In this case, a group of citizens, including children of the future, alleged that the failure of the government’s departments to implement the ‘Road Sharing Principle’ (part of the Framework Strategy on Climate Change) has resulted in the continued degradation of air quality, in violation of petitioner’s constitutional right to a balanced and healthful ecology. Interestingly, the court found that the Rule of Procedure for Environmental Cases (i) had liberalized the standing rules, being sufficient for a Writ of Kalikasan that the petitioner represents the inhabitants prejudiced by the environmental harm, and (ii) allowed direct resort to the Supreme Court, being within this court’s discretion whether to accept petitions brought directly before it. However, the petition failed as the court found that the plaintiffs failed to show that the defendants were guilty of any unlawful act or violation of environmental laws that constitutes a violation of their environmental right. A petition for the Writ of Kalikasan must clearly establish the breach of specific environmental laws, rules, and regulations and not merely contain repeated invocation of the constitutional right and bare allegations that it was violated. In this sense, individuals that want to bring a case against public actor for allegedly failing to comply with climate obligations should focus on enforcing, inter alia, quantitative targets such as those found in the NDC, instead of the broad policy strategies laid out in the Framework Strategy and related climate action plans.