“We are returning herewith the application documents with instruction to deny the same without prejudice to resubmit until the issues and concern on the use of open-pit mining method have been clarified and resolved by the company [SMI] with the Provincial Government of South Cotabato,”
The ECC or Environmental Compliance Certificate based on the Philippine Mining Act of 1995 is described as:
"Environmental Compliance Certificate (ECC)" refers to the document issued by the government agency concerned certifying that the project under consideration will not bring about an unacceptable environmental impact and that the proponent has complied with the requirements of the environmental impact statement system.
CLEARLY, Paje acted in excess of his powers and jurisdiction as the DENR chief for two (2) reasons: First, he rejected the ECC using the open pit mining ban issued by the Provincial government of South Cotabato as a reason. Paje probably did not know the law or was absent when the DENR law was being taught to him.
By using this as a reason, Paje exceeded his duties and powers as DENR chief. It is clear in the environmental laws of this country that the ECC is to be granted to an entity if an EIS (Environmental Impact Study) was submitted and all documentary and regulatory requirements are satisfied by the applicant company.
A DENR circular memorandum issued by then DENR secretary Angelo Reyes dated July 2007 says in very clear language that :
No permits, and/or clearances issued by other National Government Agencies and Local Government Units shall be required in the processing of ECC or CNC applications. (provision no. 1 in DENR MEMORANDUM CIRCULAR NO. 2007 - 08 SUBJECT : Simplifying the Requirement for Environmental Compliance Certificate or Certificate of Ron-Coverage Applications)Likewise based on the ECC approval process flow, only the EMB DIRECTOR can reject or approve the ECC of the applicant, based on of course, suggestions from other government agencies. You see, when an application is submitted to the EMB, the application is passed to other relevant agencies.
Besides, the reason used by Paje in rejecting the ECC is also FAULTY and in direct contravention of the law because the Philippine Mining Act of 1995 does not require the people's approval in the issuance of the ECC:
Sec. 70 Environmental Impact Assessment (EIA). Except during the exploration period of a mineral agreement or financial or technical assistance agreement or an exploration permit, an environmental clearance certificate shall be required based on an environmental impact assessment and procedures under the Philippine Environmental Impact Assessment System including Sections 26 and 27 of the Local Government Code of 1991 which require national government agencies to maintain ecological balance, and prior consultation with the local government units, nongovernmental and people's organizations and other concerned sectors of the community: Provided, That a completed ecological profile of the proposed mining area shall also constitute part of the environmental impact assessment. People's organizations and non-governmental organizations shall be allowed and encourage to participate in ensuring that contractors/permittees shall observe all the requirements of environmental protection.
Clearly, this means that the participation of the DENR and the EMB in issuing an ECC is MINISTERIAL. If the study followed the Philippine Environmental Impact assessment and procedures and those of Section 26 and 27 of the Local Government Code of 1991 and prior consultation, then the government is free to issue an ECC.
Prior consultation provision in the law only says that the applicant shall involve people's organisations and NGO's and other concerned sectors of the community in "ensuring that the contractors/permittees shall observe all the requirements of environmental protection." If the applicant has substantially followed and satisfied the requirements of the law, it is the right of the applicant to be issued an ECC.
I have been part of the ZTE scandal, and I sense something terribly wrong with how government handled this thru the DENR secretary. Paje should explain this otherwise, there might be some confusion especially from the foreign investor community. This is ONE EXPLOSIVE ISSUE WHICH COULD HURT THE REPUTATION OF THIS ADMINISTRATION.