UNDERSTANDING FEDERALISM 1 : Will the State Become a Refuge of Polluters, Illegal Loggers, Irresponsible Miners?

Elpidio V. Peria
10 July 2016

nene pimentel

from : vismin.politics.com.ph

Veteran lawmaker Senator Nene Pimentel, the earliest proponent of federalism in the Philippines and the father of sitting Senator Koko Pimentel, recently urged the media to conduct a series of awareness-raising activities on federalism. This blog, Biodiversity, Innovation, Trade & Society in Bits (bitsinbits.wordpress.com), responds to this call but it will take a different approach and instead of giving a summary on the ideal features and principles of federalism, it will go directly to the existing problems that we face and analyze how a federal-state governmental structure may deal with them and see whether such is better than the way it will be dealt with under the existing unitary system that we currently have.

Let’s start with environmental protection. It can be expected that both the federal and state governments will both deal with this concern at the same time and thus, may have concurrent powers in addressing the issue.

A federal form of government is structured in the way it distributes power from a central entity called the federal government and its constituent units, which may be called the state governments and its constitutional set-up enumerates the powers that are exclusive to each federal and state governments and also identifies what powers may be shared among them, their concurrent powers.

Given the importance of the environment as a key issue in this era of climate change and resource degradation, it may be useful for both federal and state governments to have the same level of authority to act on this broad issue.

But suppose the state government will have a different set of priorities than that of the federal government, like, in the exploitation of its natural resources, and the state sees the exploitation of its natural resources as its way to generate income for its constituents, which level of government will prevail in this situation?

We can take for instance the case of Davao region, a possible state under the federal set-up. It has a lot of banana and pineapple plantations, and it still has some intact forests in Davao del Norte area and some fisheries resources too and of course, some mining, in the Diwalwal area.

So, can the Davao region or state under a federal government structure take a lesser set of standards on environmental protection than the federal government because it wants to prioritize the exploitation of its natural resources as it wants to grow its economy?

The short answer to that is : yes, it can, as the state has concurrent powers on environmental protection, vis-à-vis the federal government.

But can’t the federal government step in and put some limits on how the resources of a state may be utilized so that the environment of the state will not be as exhausted or used up?

The answer to this is also a yes. If that is so where both will have the same set of powers, what will have to be clarified then is how these concurrent powers may be exercised, in a manner that does not defeat the ultimate objective of the power being exercised.

How is that again? The framers of the new Constitution that will establish our new federal government will have to write it in such a way that both federal and state governments can pursue environmental protection together but both governments should exercise their powers to pursue environmental protection in a way that does not undermine environmental protection.

What this actually means in terms of legal principles is that such goal of environmental protection and other noteworthy goals like it, may be covered by something called a non-diminution principle, a set of principles that cannot be overridden by any other goal or a set of over-arching principles that the federal system of government will commit to and everybody in the system, including the state governments, will have to adhere to.

Ultimately, this will mean that, in terms of practical application, the state government cannot set environmental protection standards lower than what the federal government will establish, for if the state government will be able to go lower, then all those who want to engage in pollutive activities, or do illegal logging or even mining that is not fully-compliant with existing environmental rules, will flock to the state that has a lower set of environmental standards.

Is this situation better than the current set-up with one national agency and its regional units implementing one set of standards from the national agency?

Maybe not much different, because the state will, at the outset, be pre-occupied with uplifting its capabilities to be able to perform the tasks of monitoring and exacting compliance with federal and state standards which are expected to be at the same level, the difference will be in the implementation of these rules, which will vary depending on the ability of the personnel of the agencies dealing with environmental protection at the state level. Perhaps through time, like, within at least two decades of implementation, then there will be a higher level of competency at all state levels compared to its present levels, then we will all be better for it.

Will there be enough resources left to exploit by then? Perhaps there will be, but maybe the quality and abundance of such resources will not be comparable to what we have today.

Will federalism then be good, in the long run, for the environment? Eventually, if the state upgrades its capabilities so that it will be able to monitor and exact compliance with its environmental rules, at the same level as that of the federal government.

It will also depend on how the concurrent powers of these two levels of government will be written up, such that they will not act at cross-purposes and the exercise of these powers will not undermine the ultimate goal of environmental protection, which may be one of a set of goals that cannot be diminished in any other manner in the federal system of government.


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