CURRENT BIODIVERSITY CONCERNS
Elpidio V. Peria
3 January 2016
picture from : http://moreandbetter.org
Contrary to former University of the Philippines (UP) President Dr. Emil Javier’s view in Manila Bulletin who described the Philippine Supreme Court’s recent 104-page decision stopping the field trials of GM eggplants (called “talong” in the Filipino language, thus sometimes it’s interchangeably called as Bt Talong) in the country as a “misapplication” of the Writ of Kalikasan, I would state that it is but a proper application of the said Writ.
To my scientist-friends who characterized the decision as anti-science, I would say to them, not really, if what they mean by “anti-science” is that the decision is without a clear reasoning for its eventual outcome – for if they will read closely the Supreme Court decision, they can see the attempt of the Court to come to grasp with the technical complexities of the implications of genetically engineered plants and food to human health and the environment, it just so happened the Supreme Court took the path of caution, as they expectedly would, and the scientists presented by the Bt eggplant proponents during trial at the Court of Appeals were not able to answer clearly and definitively the question whether “ there is no full scientific certainty that the Bt eggplant does not cause any harm pertaining to health” and that “we cannot really say that Bt Talong is perfectly safe for human consumption”. Even the assertion of one expert witness of the Bt eggplant proponents that “there is no evidence of harm” that was presented by the anti-Bt eggplant advocates, the Court merely responded to her : “that is your opinion.”
When asked to answer the questions raised above that demanded clear absolute answers, the proponents’s well-credentialed witnesses who tried to nitpick the question and answer only the parts that they only know about confirmed in the minds of the both the Court of Appeals and Supreme Court Justices, who were encountering the issues concerning genetic engineering technology for the first time, that this technology is something that the Philippines should be very careful about considering there is no clear consensus on the safety of the Bt eggplant to humans and the environment.
The Supreme Court said as much in the decision, after closing the citation of the key parts of the transcript of the hot-tub hearing done in the Court of Appeals, where both expert witnesses for the Bt Talong proponents and their oppositors were presented together :
These divergent views of local scientists reflect the continuing international debate on GMOs and the varying degrees of acceptance of GM technology by states especially in the developed countries (USA, EU, Japan, China, Australia, etc.)
Perhaps to assuage the hurt feelings of the Bt eggplant proponents, Justice Marvic Leonen, in his concurring opinion, characterized the Supreme Court decision as “neither an endorsement nor a repudiation of genetically modified ingredients, processes and food products.”
The landmark Supreme Court decision on the legality of the field trials of GMOs and its propagation in the Philippines was based mainly on the Court’s finding of lack of full scientific certainty on the human health and environmental implications of Bt eggplant.
At its most basic, the Supreme Court merely reiterated the primacy of the Constitutional right to health and right to healthful ecology of the environmental group Greenpeace and the farmers’ group MASIPAG and their supporters who filed the suit.
What further killed the case for the proponents of Bt eggplant was when the Environmental Management Bureau (EMB) witness, lawyer Atty. Segui, admitted during the Court of Appeals hearing that there was actually no capacity and budget within the EMB to conduct the environmental impact assessment of Bt eggplants. A key portion of the exchange was quoted by the Supreme Court decision to highlight what is inadequate in the existing regulatory framework on GMOs in the Philippines and some illuminating part of it are as follows:
HON. J. VALENZUELA :
So therefore, when you say initially it’s unclassified and then you’re saying afterwards the EMB needs evaluation but then your’re saying the EMB is without any capability to evaluate then what happens?
ATTY SEGUI :
Well your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that’s how we interpret it. But the truth of the matter is with all pragmatism, we don’t have resources as of now and expertise to do just that.
The nail in the coffin, so to speak, for the proponents was the issue of whether the administrative regulation that governed the field trials of Bt eggplant, Department of Agriculture Department Administrative Order 08-2002, was adequate.
To make this determination, the Supreme Court tested DAO 08-2002, a line agency administrative issuance, in this case, the Department of Agriculture (DA), against an Executive Order or an EO, a regulation that is apparently of a higher hierarchy than the administrative order since it is an issuance by the Philippine President, who is, by the terms of the 1987 Constitution, the head of the Executive Department, meaning all line agencies, including the DA, are answerable to him. This Executive Order is EO 514, the National Biosafety Framework (NBF) of the Philippines.
The Supreme Court found DAO 08-2002 deficient in terms of issuing joint guidelines with the appropriate agency on the conduct of environmental impact assessment of Bt eggplants and in the proper conduct of public participation.
The Supreme Court said that even as the proponents repeatedly argued they are not covered by the EIS law, EO 514 clearly mandates that concerned departments and agencies, most particularly petitioners DENR-EMB, BPI and FPA, make a determination whether the EIS system (where the proponent will have to do an environmental impact assessment or EIA) should apply to the release of GMOs into the environment and issue joint guidelines on the matter.
The Supreme Court also added that even if that mandate from the NBF to do EIA did not exist, the existing regulations on the conduct of EIA by the DENR-EMB would still apply as Bt eggplants can be classified as “new and emerging technologies.”
What may not have come out in the hearings is that there has been a long-pending draft EIA regulation that was designed by the DENR through the Protected Areas and Wildlife Bureau (now the Biodiversity Management Bureau) and tailor-fit for GM products that were consistently ignored by the Department of Agriculture for many years, dating back from the time of then DENR Secretary Atienza sometime in 2005 or earlier. Had the DA adopted that measure and integrated it even if DA may have modified it to its liking as an accompanying regulation of DAO 08-2002, then they would have something to show before the Court of Appeals that indeed, these environmental concerns were indeed taken into account seriously by them.
As to the matter of public participation, the Supreme Court found that “petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort was made to operationalize the principles of the NBF in the conduct of field testing of Bt talong.”
It was on these grounds that the said regulation was declared null and void by the Supreme Court.
These principles relate to what the Supreme Court said as “a more transparent, meaningful and participatory public consultation on the conduct of field trials beyond the posting and publication of notices and information sheets, consultations with some residents and government officials, and submission of written comments, provided by DAO 08-2002.
Justice Marvic Leonen, in his concurring opinion, further detailed the defects of the public participation requirement outlined in DAO 08-2002 :
a) The applicant chooses the members of the Institutional Biosafety Committee (IBC – the entity that initially screens the application for GMO field trial) and this is problematic because the applicant does not have any incentive to choose the critical community representatives. The tendency would be to choose those whose dissenting voices are tolerable;
b) The National Committee on Biosafety of the Philippines, apart from not being a sufficient oversight for people’s participation, is a government body. A government body is not the community that should supposedly be represented in the IBC;
c) The posting in the Public Information Sheet in three conspicuous places near the field testing site is not enough to raise awareness regarding the field testing being applied for. The subject matter in transgenic transformation is too complex and its consequences too pervasive as to simply leave this through the fictional notice of public posting;
d) There was also a requirement for posting on the internet to capture the attention of relevant stakeholders; this was not required by DAO 08-2002;
e) The mechanism under DAO 08-2002 does not even require that local government authorities be apprised about the proposed field testing. Certainly, engaging local government authorities invites more meaningful public discourse.
f) The Scientific and Technical Review Panel, a group of 3 independent scientists that reviews the risk assessment conducted by the IBC does not have a community representative. It is also tasked to evaluate- based on the individual scientist’s own standards –whether the proposed field testing poses significant risks on human health and the environment. How the points raised during the mandatory public hearings will be considered in the issuance of the field testing permits is not covered by DAO 08-2002. In this regard, there is no standard or process;
g) The nonchalant attitude of the regulatory framework is best seen when petitioners alleged there was some public consultation prior to field testing. These consultations, however, were not documented. The only proof of it was a bare allegation in the affidavit of one witness of the DA in her affidavit.
h) The absence of an effective mechanism for public feedback during the application process for field testing means the administrative order failed in meeting the public participation requirement of the Cartagena Protocol;
i) The insouciant approach to public participation during the application process is obvious as there is no appeal procedure for third parties. The administrative regulation only deals with appeals by any person whose permit has been revoked or has been denied a permit or whose petition for delisting has been denied by the Director of the Bureau of Plant Industry.
In this final omission, Justice Leonen said that procedural due process is taken away from the public.
In conclusion, the imperatives of an appropriate biosafety policy for Bt eggplants and similar crops in the Philippines was best summed up by Dr. Ben Malayang, one of the experts for the Bt eggplant oppositors in the hot-tub hearings in the Court of Appeals who was himself a member of the National Committee on Biosafety of the Philippines, in the heat of exchange against the Bt eggplant proponent’s expert witnesses, and he said :
Xxx… introducing Bt Talong in the Philippines must be decided on the grounds of both science and public policy, and public policy, in this case, must involve full disclosure and participation in accepting both the potential gains and possible pains of Bt Talong. The stakes, both positive and negative, are so high that I believe Bt Talong would require more public scrutiny and wide decision making beyond the [realm] of science. Xxx for the sake of our country and our rich biodiversity xxx prudence requires that maximum efforts be exerted to ensure its safety beyond the parameters of science and into the sphere of public policy xxxx
Unless the proponents of Bt talong and those who designed and promoted the faulty administrative regulation DAO 08-2002 that was declared null and void by the Supreme Court take heart these mandates from the Supreme Court in this case, including what Dr. Ben Malayang poetically evoked above, the most honourable thing that they can do, if they continue to insist they are right and the Supreme Court wrong in this case, is to resign their present positions in the National Committee on Biosafety of the Philippines or whatever positions of influence they may still be inclined to use to still bend the new rules that will need to be formulated immediately, to their Supreme Court-discredited positions.
It is important that all sectors, particularly the scientists who so brazenly asserted they faithfully complied with the rules on EIA and public participation when in fact they did not, should be humble enough to say they are mistaken and be open to suggestions that take seriously the concerns identified by the Supreme Court so that the process of rebuilding anew the Philippine regulatory framework on GMOs via legislation would have a fresh start with new people that are serious in learning from this decision.
The scientists who deal with GMO regulations and the public should take this advice from the Supreme Court in this case :
There can be no argument that “since scientific advise plays a key role in GMO regulations, scientists have a responsibility to address and communicate uncertainty to policy makers and the public.”