OSG Comment - Banana Planers vs. Davao - Updated

8/3/2019 OSG Comment - Banana Planers vs. Davao - Updated

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REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

PILIPINO BANANA GROWERS ANDEXPORTERS ASSOCIATION, INC.,ET AL.,

Petitioners-Appellees,

- versus - G.R. No.

CITY OF DAVAO, ET AL.,

Respondent-Appellant,x-----------------------------------------------x

COMMENT FOR THE REPUBLIC OF THEPHILIPPINES

The Office of the Solicitor General, on behalf of the Republic

of the Philippines, unto this Honorable Court, most respectfully

states:

PRELIMINARY STATEMENT

This is an appeal from the Decision dated January 9, 2009 of

the Court of Appeals Cagayan de Oro City, which reversed and

set aside the September 22, 2007 Decision of Branch 17 of the

Regional Trial Court of Davao City. The dispositive portion of the

decision reads:

WHEREFORE, premises considered,the appeal is GRANTED. The assailedSeptember 22, 2007 Decision of theRegional Trial Court (RTC), 11th JudicialRegion, Branch 17, Davao City, upholdingthe validity and constitutionality of Davao


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COMMENT FOR REPUBLIC 2Pilipino Banana Growers andExporters, Inc., Et al.,vs. City of Davao,G.R. No. xxxxPage 2 of 30x=================x

City Ordinance No. 0309-07, is herebyREVERSED and SET ASIDE.

FURTHER, the Writ of PreliminaryInjunction dated 28 January 2008 enjoiningthe City Government of Davao, and anyother person or entity acting in its behalf,from enforcing and implementing City

Ordinance No. 0309-07, is hereby madepermanent.

SO ORDERED.

(CA Decision, p. 43)

In its brief, respondent-appellant assails the Court of

Appeals in rendering the questioned decision on the following

grounds:

I

THE COURT OF APEALS ERRED IN RULING THAT THE THREE-MONTH PERIODCONSTITUTES UNLAWFUL MEANS

II

THE COURT OF APPEALS ERRED IN RULING THAT THERE WAS FORFEITURE OFPROPERTY WITHOUT DUE PROCESS OF LAW

III

THE COURT OF APPEALS ERRED THAT THERE WAS VIOLATION OF EQUALPROTECTION BECAUSE OF FAILURE TOMAKE A DISTINCTION AS TO THE KIND OFSUBSTANCE

IV


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On April 25, 2007, Pilipino Banana Growers and Exporters

Association, Inc (PBGEA), a non-stock corporation composed of

corporate banana plantations, and two (2) of its members, the

Davao Fruits Corporation and the Lapanday Agricultural and

Development Corporation, filed before the trial court a Petition

(With Prayer for the Issuance of a Temporary Restraining Order

and/or Writ of Preliminary Injunction), which case was docketed

as Civil Case No. 31,837-2007 for injunction.

The City of Davao was impleaded as the lone respondent in

the petition. However, on May 8, 2007, a Motion for Leave to

Intervene and Opposition to the Issuance of a Preliminary

Injunction was filed by herein intervenors-appellants Wilfredo

Mosqueto, Marcelo Villaganes, Crispin Alcomendras, Corazon

Sabinada, Geraldine Catalan, Julieta Lawagon, Rebecca

Saligumba, Florencia Sabandon, Carolina Pilongo, Alejandra

Bentoy, Ledevina Adlawan, and Virgina Cata-ag, invoking their

constitutional rights to health and to a healthful and balanced

ecology.

On May 21, 2007, petitioners-appellees opposed the motion

to intervene because intervenors-appellants failed to show their

alleged right to intervene, and that the motion was pro forma as


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it did not contain a notice of hearing. They also alleged that the

motion was insufficient in form and substance since it was not

accompanied by a pleading-in-intervention. Intervenors-

appellants filed their Answer-in-Intervention on May 22, 2007.

On May 28, 2007, respondent-appellant filed an Answer

arguing the validity of Ordinance 0309-07 and praying that the

petition be dismissed for lack of merit. On June 4, 2007, the trial

court issued an Order granting the motion to intervene and

admitting the Answer-in-Intervention filed by intervenors-

appellants. Petitioners-appellees Motion for Reconsideration

thereof was denied in an Order dated June 20, 2007.

In a separate Order also dated June 20, 2007, the trial court

granted petitioners-appellees application for a writ of preliminary

injunction against the actual enforcement on June 23, 2007 of the

aerial spraying ban, finding that the period of three months is

unreasonable and/or physically impossible for contrary parties to

adopt measures in opting to follow said ordinance in going into

other spraying method. Thus, in its June 25, 2007 Order, the trial

court enjoined respondent-appellant and intervenors-appellants

from enforcing Ordinance 0309-07 for a period of three (3)

months, from June 23, 2007 to September 23, 2007.


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The case was referred to mediation before the Philippine

Mediation Center. Mediation between the parties eventually

failed. The pre-trial conference proceeded on August 14, 2007

where petitioners-appellees and intervenors-appellants admitted,

among others, that fungicides were aerially sprayed over banana

plantations to contain the proliferation thereon of the Black

Sigatoka fungus. The Pre-trial Order was issued on September 3,

2007.

Trial commenced on September 10, 2007 and proceeded

until the case was submitted for decision pursuant to the trial

courts September 21, 2007 Order. On September 22, 2007, the

trial court rendered a Decision which disposed of the case as

follows:

WHEREFORE, finding the subjectordinance No. 0309-07 valid andconstitutional in all aspect (sic) of thegrounds assailed by the petitioner, said cityordinance No. 0309-07 is sustained of itsvalidity and constitutionality.

Accordingly, the order of this court

dated June 20, 2007, granting the writ ofpreliminary injunction as prayed for bypetitioner is ordered canceled and set asideas a result of this decision.

SO ORDERED.


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On September 25, 2007, petitioners-appellees filed a Notice

of Appeal to the Court of Appeals.

On January 9, 2009, the Court of Appeals rendered the

assailed Decision reversing the decision of the trial court.

As a result of the timely appeal of herein respondent-

appellant and the assumption of jurisdiction by this Honorable

Court, the Office of the Solicitor General was hereby ordered to

file a Comment for the proceedings in the Supreme Court.

ARGUMENTS

I. The Court of Appeals erredin ruling that the three-

month period constitutesunlawful means

Subject of this discussion is Section 5 of the challenged

Ordinance, which states:

Section 5. BAN ON AERIAL SPRAYING Aban on aerial spraying shall be strictly

enforced in the territorial jurisdiction ofDavao City three (3) months after theeffectivity of this Ordinance.

In ruling that the three-month interim period from the

effectivity of the Ordinance to its strict implementation is


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following substantive requirements: (1) must not contravene the

Constitution or any statute; (2) must not be unfair or oppressive;

(3) must not be partial or discriminatory; (4) must not prohibit but

may regulate trade; (5) must be general and consistent with

public policy and (6) must not be unreasonable.3 The evidence

presented by the petitioners-appellees, as will be discussed later,

falls short in proving that the subject Ordinance does not conform

to such substantive requirements.

Further, the City of Davao has consistently contended that

the enactment of Ordinance 0309-07 is an exercise of its police

power. As regards such exercise, the applicable doctrine is that

local governments may be considered as having properly

exercised their police power only if the following requisites are

met: (1) the interest of the public generally, as distinguished from

those of a particular class, require its exercise and (2) the means

employed are reasonably necessary for the accomplishment of

the purpose and not unduly oppressive upon individuals. In short,

there must be a concurrence of a lawful subject and a lawful

method.4

3 Social Justice Society vs. Atienza, G.R. No. 156052, 13 February 2008.4 SJS v Atienza, ibid.


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The Court of Appeals has squarely ruled that it is within the

mandate and authority of the City of Davao to enact Ordinance

No. 0309-07 since it is a measure that has an ostensible lawful

subject, that is, the protection of the public health and the

environment against the alleged harmful effects of aerial

spraying of pesticides or fungicides.5 Thus, the main point of

contention herein is whether or not the same Ordinance makes

use of unlawful means to achieve its purpose.

In the case at hand, petitioners-appellees alleged that the

imposition of the three-month period constitutes an unlawful

means for the exercise of police powerthat it is oppressive,

unreasonable and impossible to comply with thus making the

Ordinance void and unconstitutional. To bolster their claim,

petitioners-appellees presented the testimonies of PBGEA

Chairperson Dr. Maria Rita G. Fabregar, Engr. Magno P. Porticos

and CPA Maria Victorina Cembrano. The testimonies of the first

two witnesses were relied on to establish that a complete shift to

truck-mounted spraying, allegedly the least harmful and most

efficient alternative to aerial spraying, would take at least three

(3) years, while the testimony of the last witness was cited to

prove the high capital requirement for the shift to truck-mounted

5 CA Decision, dated January 9, 2009, p. 14


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spraying and that the other forms of spraying, namely manual or

back-pack spraying and sprinkler spraying, would pose

insurmountable consequences to the business and its laborers.

To this, an additional witness was presented, Dr. Anacleto

Pedrosa, Jr., who testified that a shift to manual or backpack

spraying or sprinkler spraying would imperil not only banana

production but also the health of workers because the same are

the least safe and least efficient methods of spraying. The

witness explained that the workers will be drenched with the

water solution which might prove detrimental to their health and

that this would require a larger volume of water, pesticides and

fungicides.

While such concern for the health of their workers is worthy

of praise, it is virtually an admission that continued exposure to

the water solution creates a health risk among those exposed.

True, aerial spraying only causes indirect exposure but its reach

is more widespread. More people are exposed to the harmful

pesticides and fungicides, and over time, the toxins would

accumulate, causing health problems to the hundreds of people

exposed. This is not to say that we should sacrifice the lives of

the plantation laborers in exchange for the well-being of entire

towns. What we advocate is for a more effective and efficient way


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to limit the adverse effects. It is common sense that it is easier to

manage health risks when only a few people are exposed to the

contaminant. It is especially true in this case wherein the only

people who are exposed to the chemicals (i.e. plantation workers)

are also under the direct control of those who will eventually be

liable for the injuries they may sustain from the continued

exposure. This will create direct accountability and an incentive

for the plantation owners to take the necessary precautions to

avoid or minimize their workers exposure to chemicals, such as

using masks, goggles, gloves and protective/impenetrable

clothing.

As to the feasibility of the alternative spraying methods,

there is an absolute dearth of evidence that manual or backpack

spraying and sprinkler spraying cannot be implemented within

three months. There is no showing that there is a lack of

manpower or unavailability of equipment and protective gear.

There is no evidence as to the impossibility of obtaining the

necessary funds to shift to these methods. Even the evidence

presented as to the feasibility of truck-mounted boom spraying is

not enough to show that it is absolutely impossible to effect the

shift. As discussed in the Dissenting Opinion of Justice Borja, to

which we fully subscribe to, temporal and logistical constraints


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are overcome if sufficient financial resources are committed to

the undertaking.6 The Philippines is one of the top ten banana

exporting countries, with exports valued at US$216 million in

1997.7 Here, there is no clear showing that petitioners-appellees

currently do not have sufficient financial resources to shift to

truck-mounted spraying. They merely showed their unwillingness

to part with the needed amount. Moreover, it was not proven that

the inefficiencies created (i.e. need for more water pesticides and

fungicides, uneven application) would be so great as to amount

to oppression or prohibition of trade. While the shift may result to

fewer yield and profits for the plantation owners, such is not

enough to declare the Ordinance invalid especially when the

health benefits to a greater number of city residents clearly

outweigh the business losses.

Besides, Davao City is not the first to legislate against aerial

spraying. The Provincial Boards of Bukidnon and North Cotabato

have previously passed similar legislations banning aerial

spraying as early as 2001.8 This would at least prove that the

technology and equipment needed for the alternative methods of

spraying are readily available in the market.

6 Dated January 9, 20097 http://www.philonline.com.ph/~webdev/da-amas/banana.html8 http://www.insidemindanao.com/article92.html


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Taking everything into consideration, it is clear that the

Court of Appeals erred in ruling that the Ordinance is oppressive,

unreasonable and impossible to comply with.

II. The Court of Appealserred in ruling that therewas forfeiture of propertywithout due process of law

Another point of contention is Section 6 of the Ordinance

which states that all agricultural entities must provide for a

thirty (30)-meter buffer zone within the boundaries of their

agricultural farms/plantations. It is alleged that such provision

constitutes unlawful taking of property, in violation of the due

process clause.

It is a settled rule in our jurisprudence that not every taking

is compensable, as it may be justified under the police power.9

Property condemned under the exercise of police power is

noxious or intended for a noxious purpose, such as a building on

the verge of collapse, which should be demolished for the public

safety, or obscene materials, which should be destroyed in the

interest of public morals. The confiscation of such property is not

compensable, unlike the taking of property under the power of

9 Cruz, Isagani, Constitutional Law (2003), p. 71


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expropriation, which requires the payment of just compensation

to the owner.10

There is recognized wisdom in the Dissenting Opinion of

Justice Brandeis, in Pennsylvania Coal Co. v Mahon,11 which

states:

Every restriction upon the use of propertyimposed in the exercise of the police powerdeprives the owner of some righttheretofore enjoyed, and is, in that sense,an abridgment by the State of rights in

property without making compensation. Butrestriction imposed to protect the publichealth, safety or morals from dangersthreatened is not a taking. The restrictionhere in question is merely the prohibition ofa noxious use. The property so restrictedremains in the possession of its owner. Thestate does not appropriate it or make anyuse of it. The state merely prevents theowner from making a use which interferes

with paramount rights of the public.Whenever the use prohibited ceases to benoxious as it may because of furtherchanges in local or social conditions therestriction will have to be removed and theowner will again be free to enjoy hisproperty as heretofore.

In this case, even if the buffer zone regulation

amounted to forfeiture of property, still the City of Davao cannot

be faulted. The City merely exercised police power. The

requirement of a buffer zone was imposed to avoid or minimize

10 City of Baguio v NAWASA,106 Phil. 144 (1959)11 260 US 393 (1922)


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harm to the environment and inhabitants. The buffer zone must

be planted with diversified trees that grow taller than are usually

planted and grown in the plantation to protect those within the

adjacent fields, neighboring farms, residential area, schools, and

workplaces.12 Such regulation of the use of the land was clearly

intended to avoid or minimize the health and environmental risks

caused by the spray drift. Queensland Governments

Department of Primary Industries and Fisheries has already

encouraged the maintenance of a buffer zone between areas of

application and areas where there is a risk of damage from spray

drift.13 The US Environmental Protection Agency14 explains the

concept this way:

What Is Pesticide Spray Drift? EPAdefines pesticide spray drift as the physicalmovement of a pesticide through air at the

time of application or soon thereafter, toany site other than that intended forapplication.How Does Spray Drift Occur? Whenpesticide solutions are sprayed by groundspray equipment or aircraft, droplets areproduced by the nozzles of the equipment.Many of these droplets can be so small thatthey stay suspended in air and are carriedby air currents until they contact a surface

or drop to the ground. A number of factorsinfluence drift, including weatherconditions, topography, the crop or areabeing sprayed, application equipment andmethods, and decisions by the applicator.

12 Section 3 (e), Definition of Terms, Ordinance No. 0309-0713 http://www.dpi.qld.gov.au/cps/rde/dpi/hs.xsl/4790_4909_ENA_HTML.htm14 http://www.epa.gov/pesticides/factsheets/spraydrift.htm


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What Are the Impacts of Spray Drift?Off-target spray can affect human healthand the environment. Spray drift can resultin pesticide exposures to farmworkers,children playing outside, and wildlife and itshabitat. Drift can also contaminate a homegarden or another farmer's crops, causing

illegal pesticide residues and/or plantdamage. The proximity of individuals andsensitive sites to the pesticide application,the amounts of pesticide drift, and toxicityof the pesticide are important factors indetermining the potential impacts fromdrift.

As even the alternative methods of spraying would still produce a

spray drift that would result in indirect exposure of the nearby

residents, a buffer zone is needed to provide protection to the

areas surrounding the plantations. As to the size of the buffer

zone, a study conducted by two Italian Universities, Universit

Politecnica delle Marche and Universit Cattolica del Sacro Cuore,

found that in typical Italian agricultural conditions, spray drift in

vineyards occurs at a distance of more than 24 meters. The

presence of tree rows in front of the water body inside the

agricultural field, against the main wind direction, resulted in a

very high reduction of the spray drift and of the ecotoxicological

risk for aquatic ecosystem.15 Erdal Ozkan, an Ohio State

15 Measures to reduce pesticide spray drift in a small aquatic ecosystem in vineyard

estate, available online at http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6V78-4PYJDXT-

4&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=13cd04479cb00963cd8d003ac3eac5c

3


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University Extension agricultural engineer, who is part of the

team that created a drift simulator computer program: "Spray

drift is a serious concern for all who apply pesticide. The biggest

problem with reducing drift is that conditions are slightly different

in every field, so recommendations to reduce drift are not

applicable in all field situations."16 Because conditions may be

slightly different, the 30-m buffer zone imposed by the City of

Davao is but reasonable using the Italian study as benchmark to

ensure that the risks to its residents are minimized to the lowest

possible extent, if not eradicated. Here, the maxim Salus populi

est suprema lex finds application. The welfare of the greater

people must be prioritized over the property rights of the

plantation owners.

It is contended that the imposition of the 30-meter buffer

zone without regard to the size of the landholdings or plantations

constitutes a violation of the due process clause. Petitioners-

appellees, however, fail to see that the size of the landholding is

not relevant to what the City seeks to avoid. The size of the

landholding does not alter the reach of the spray drift as this is

purely governed by air/wind dynamics. The pesticide sprayed on

the outermost trees of a small plantation would drift in the air for

16 http://www.agriculture.purdue.edu/AgAnswers/story.asp?storyID=4023


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approximately the same distance outside the plantation border

as would the pesticide sprayed on the outermost trees of a large

plantation. Thus, it is of no moment that the Ordinance did not

consider the size of the landholding in imposing the 30-meter

buffer zone.

Besides, the buffer zone does not completely deprive the

land owners of its beneficial use. The requirement is it that must

be planted with diversified trees that grow taller than are usually

planted and grown in the plantation. The owners can still plant

fruit-bearing trees as long as they are taller than the banana

trees in their plantation and are not sprayed by the pesticides as

well. The ground area between the trees may still be used for

other purposes like composting. The owners are not at all

prohibited to find other productive use for the land as long as it is

planted with taller trees. With proper planning and motivation,

the buffer zone may still be of some beneficial use to its owner,

thus proving that the regulation of the land use does not amount

to indiscriminate and compensable taking.

One last thing, it must be noted that petitioners-appellees

are already required to maintain a buffer zone as a condition to

its operations, as imposed by the Department of Environment


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and Natural Resources. Unless they admit that they are not

complying with the conditions imposed under their current DENR

permits, the imposition of the buffer zone in the Ordinance would

not amount to taking because the property in question is already

devoted to such use as the regulation seeks to impose.

III. Whether or not there wasviolation of equal protectionbecause of failure to make adistinction as to the kind ofsubstance to be used

The Court of Appeals held that Ordinance No. 0309-07 is

violative of the Equal Protection Clause of the 1987 Constitution

because of the sweeping ban imposed on aerial spraying

regardless of the kind of substance that is to be discharged.

In the said ordinance, aerial spraying is defined as the

application of substances through the use of aircraft of any form

which dispenses the substances in the air. According to the

Court of Appeals, the ban encompasses aerial application

application of practically all substances, not only pesticides or

fungicides but including water and all forms of chemicals,

regardless of its elements, composition or degree of safety.

Since the ordinance does not classify which substances are

prohibited from being sprayed aerially even if reasonable


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distinctions could be made according to the hazards posed or the

beneficial effects, it was deemed to have been violative of the

Equal Protection Clause of the.

There must also be a reasonable relation between the

purposes of the policy measure and the means. Lack of such a

reasonable relation will be deemed as arbitrary intrusion and is

thus violative of the due process clause. The Court of Appeals

held that the indiscriminate ban on aerial spraying without

considering the substance to be discharged is not reasonably

related to the public purpose which the ordinance aims to uphold.

It is the Solicitor Generals position that the questioned

ordinance is not violative of the abovementioned Constitutional

precepts.

In the first place, the Ordinance aims to uphold the health

and safety of the residents of Davao City by addressing the

problems brought about by air pollution. It does so by

pinpointing the sources of air pollutants and such sources include

the substances released through aerial spraying. Thus in a bid to

prevent the air in the atmosphere from being filled with other


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substances than what is naturally present, the Ordinance seeks

to ban aerial spraying as an agricultural practice.

The ban imposed is not indiscriminate as there is no need to

impose classifications based on the nature of the substance along

with their benefits and disadvantages. This is clearly seen in

terms of pesticides and fungicides which do not naturally occur in

the air and are toxic and potentially harmful to the health of the

Davao City residents. However, the respondents challenge the

validity of the prohibition with regard to the aerial spraying of

water, vitamins and minerals since these substances are not

harmful per se but are among those banned from being

discharged through aerial spraying.

The issue at hand in the ordinance is the aerial spraying of

pesticides and fungicides as an agricultural practice. Banana

planters in Davao City have been engaged in this business for

approximately three or four decades and all this time, it has been

their practice to aerially spray pesticides and fungicides. Thus it

can be deduced that the term substance in the ordinance refers

to pesticides and fungicides and not to any other substance.

Vitamins, minerals, fertilizer or water are not included in the term

substance since these are not the materials dispersed in aerial


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spraying as an agricultural practice in Davao City. One of the

principles in statutory construction is verba accipienda sunt

secundum materiam a word is to be understood in the context

in which it is used. While ordinarily a word or term used in a

statute will be given its usual and commonly understood

meaning, the context in which the word is used may dictate a

different sense. Petitioners are not the proper parties to raise

such an issue since they are not engaged in the aerial spraying of

substances other than pesticides and fungicides in the first place.

IV. Whether or not thenature of the generalwelfare clause of the LocalGovernment Code requiresactual harm

The general welfare clause of the Local Government Code

states:

Section 16. General Welfare. - Every local governmentunit shall exercise the powers expressly granted, thosenecessarily implied therefrom, as well as powers necessary,appropriate, or incidental for its efficient and effectivegovernance, and those which are essential to the promotion ofthe general welfare. Within their respective territorial

jurisdictions, local government units shall ensure and support,

among other things, the preservation and enrichment of culture,promote health and safety, enhance the right of the people to abalanced ecology, encourage and support the development ofappropriate and self-reliant scientific and technologicalcapabilities, improve public morals, enhance economic prosperityand social justice, promote full employment among theirresidents, maintain peace and order, and preserve the comfortand convenience of their inhabitants. (italics supplied)


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The Court of Appeals decision is adopting a wait-and-see

attitude with regard to determining whether or not the pesticides

and fungicides disperse through aerial spraying are indeed

harmful to humans. Evidence was presented to bolster

arguments which uphold that the pesticides are not toxic as well

as to support the claim that they indeed are harmful to a persons

health and safety. The Court of Appeals held that the issue as to

whether or not the practice of aerial spraying per se and the

fungicides or pesticides applied on banana plantations are

inimical to the public health and livelihood, and to the

environment has not been factually settled. For instance, the

Court notes that the testimonies of the witnesses of respondent

City of Davao illustrated how some residents of Davao City have

been suffering from various ailments but these testimonies did

not prove that the aerial spraying of substances is the proximate

cause of the various ailments that they allegedly suffer.

This stand is made by the Court despite its own admission

that it is skeptical of the foregoing claims on the seemingly

foolproof safety of pesticides or fungicides, both as chemical

substances and in terms of human exposure to the same, since

petitioners-appellant already admitted that the pesticides or

fungicides they used would prejudice the health of their workers


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if manually sprayed. The admission would sensibly mean that

exposure to such substances, even in the diluted form, poses

danger to the human health.

In aerial spraying, the fungicide commonly used is

Mancozeb. It is registered as a general use pesticide by the U.S.

Environmental Protection Agency but in 1987, the EPA announced

a re-evaluation of ethylene bisdithiocarbamates (EBDCs), a class

of chemicals to which Mancozeb belongs which arose out of

results on laboratory tests on rats. The re-evaluation focused on

several aspects, including health risks.17

Mancozeb in itself has very low acute toxicity to mammals.

Routes of Mancozeb exposure is either through inhalation or skin

exposure. Mancozeb causes moderate irritation to the skin and

the respiratory mucous membranes which are manifested

through itching, scratchy throat, sneezing, coughing,

inflammation of the nose or throat, and bronchitis. Although

there is no evidence of nerve tissue breakdown, the

dithiocarbamates which compose Mancozeb break down to

carbon disulfide which are neurotoxins capable of damaging

nerve tissue.18

17 Mancozeb Pesticide Information Profile,

http://pmep.cce.cornell.edu/profiles/extoxnet/haloxyfop-methylparathion/mancozeb-ext.html18 Ibid.


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Another major toxicological concern is ethylenethiourea

(ETU) which is an industrial contaminant and a breakdown

product of Mancozeb. It can potentially cause goiter

(enlargement of the thyroid gland) and also has produced birth

defects and cancer in experimental animals.

The general welfare clause of the Local Government Code

allows local government units to exercise powers essential for the

promotion of, among others, health and safety of its residents.

To promote health and safety does not mean providing remedies

when certain events happen which would cause actual injury to

the residents of the LGU in terms of their health and would

imperil their lives. Promoting health and safety also means

preventing the occurrence of certain incidents which could

logically endanger the residents health and could compromise

their safety.

Ordinance No. 0309-07 was enacted by the City of Davao in

accordance with the powers granted to it by the General Welfare

Clause of the Local Government Code. The ordinance was meant

to prevent residents from suffering the possible health effects of

exposure to pesticides and fungicides dispersed through aerial


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spraying. Although significant scientific findings are needed to

directly link the ailments suffered by some residents to the aerial

spraying of pesticides and fungicides, the fact remains that the

toxicity of such fungicides and pesticides are deemed admitted

by the petitioners themselves and the Court of Appeals. There is

no need to wait for scientific findings to actually make the

connection or for people to actually start suffering the harmful

effects of pesticide and fungicide exposure. Promotion of health

and safety encompasses not only protection from the dangers as

they are present but also prevention of exposure to potentially

hazardous situations.

The general welfare clause also gives the LGUs the

responsibility to enhance the right of the people to a balanced

ecology. The Court of Appeals decision noted the argument of

respondent City of Davao that the pesticides and fungicides can

possibly contaminate water reservoirs in the city. However the

Honorable Court held that there was lack of evidence to precisely

indicate that such a risk is present.

In terms of studies conducted on Mancozeb, it has been

found to be insoluble in water and thus infiltration in groundwater

is unlikely. However the pesticide should be kept away from


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lakes, rivers and other areas where runoff is to occur since

disposal near bodies of water can cause contamination.19

However, Mancozeb has been noted to be harmful to

animals. It has been found to be lethal to fish and is slightly toxic

to some bird species. Its toxicity with regard to other animals is

still under review.20

With aerial spraying, pesticides and fungicides are spread

over a wide area. Factoring in air drift, the said substances are

further disseminated beyond their target areas. Such substances

have been initially noted to be toxic to animals and have also

raised concerns with regard to contamination of water reservoirs.

These areas of concern rightfully fall under matters of a balanced

ecology, another responsibility of the LGUs. The City of Davao, in

enacting the said ordinance, aimed to prevent the possible

catastrophic results to the environment of aerial spraying of

pesticides and fungicides. As previously discussed, there was no

need for actual harm to be evident. The City adopted a

preventive stance and such appropriately was appropriately

19 Mancozeb Pesticide Information Profile,http://pmep.cce.cornell.edu/profiles/extoxnet/haloxyfop-methylparathion/mancozeb-

ext.html

20 Ibid.


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encompassed by the general welfare clause of the Local

Government Code.

Withal, as the petitioners-appellees failed to overthrow the

presumption of validity of Davao Citys Ordinance 0309-07, the

appealed Decision must be vacated.

PRAYER

WHEREFORE, it is respectfully prayed that the Decision of

January 9, 2009 in CA-G.R. CV. No. 01389-MIN be REVERSED and

SET ASIDE, and judgment be rendered upholding the VALIDITY

and CONSTITUTIONALITY of Ordinance No. 0309-07 of the City of

Davao.

Makati City, February 20, 2009.

JOANNA EILEEN CAPONESAssistant Solicitor General

Roll No. xxxxxIBP Lifetime Roll No. xxxx

AIDA ROSE VILLANUEVAAssistant Solicitor General

Roll No. xxxxx


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IBP Lifetime Roll xxxx

OFFICE OF THE SOLICITOR GENERAL134 Amorsolo Street, Legaspi Village

Makati City

Documents

OSG Comment - Banana Planers vs. Davao - Updated