1

July 26, 2016 G.R. No. 209271

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC., Petitioner vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE., JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN
MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention
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G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, BUREAU OF PLANT INDUSTRY AND THE FERTILIZER AND PESTICIDE AUTHORITY OF THE
DEPARTMENT OF AGRICULTURE, Petitioners, vs.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN,
and EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
x-----------------------x
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner,
vs. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD
NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZLUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE,
JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and
EDWIN MARTHINE LOPEZ, Respondents.
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G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES LOS BAÑOS, Petitioner, vs.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY L. ROQUE, JR.,
FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN, and EDWIN
MARTHINE LOPEZ, Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

Before the Court are nine (9) Motions for Reconsideration1 assailing the Decision2 dated December 8,
2015 of the Court (December 8, 2015 Decision), which upheld with modification the Decision3 dated May
17, 2013 and the Resolution4 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00013.
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The Facts

The instant case arose from the conduct of field trials for "bioengineered eggplants," known as Bacillus
thuringiensis (Bt) eggplant (Bt talong), administered pursuant to the Memorandum of Undertaking5 (MOU)
entered into by herein petitioners University of the Philippines Los Baños Foundation, Inc. (UPLBFI) and
International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of
the Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the crystal toxin
genes from the soil bacterium Bt, which produces the CrylAc protein that is toxic to target insect pests.
The Cry1Ac protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer,
the most destructive insect pest to eggplants.6

From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the implementing
institution of the field trials, conducted a contained experiment on Bt talong under the supervision of the
National Committee on Biosafety of the Philippines (NCBP).7 The NCBP, created under Executive Order
No. (EO) 430,8 is the regulatory body tasked to: (a) "identify and evaluate potential hazards involved in
initiating genetic engineering experiments or the introduction of new species and genetically engineered
organisms and recommend measures to minimize risks"; and (b) ''formulate and review national policies
and guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and their
genetic materials for the protection of public health, environment[,] and personnel[,] and supervise the
implementation thereof."9 Upon the completion of the contained experiment, the NCBP issued a
Certificate10 therefor stating that all biosafety measures were complied with, and no untoward incident
had occurred.11

On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)-year Biosafety
Permits12for field testing of Bt talong13after UPLB's field test proposal satisfactorily completed biosafety
risk assessment for field testing pursuant to the Department of Agriculture's (DA) Administrative Order
No. 8, series of 200214 (DAO 08-2002),15 which provides for the rules and regulations for the importation
and release into the environment of plants and plant products derived from the use of modern
biotechnology.16 Consequently, field testing proceeded in approved trial sites in North Cotabato,
Pangasinan, Camarines Sur, Davao City, and Laguna. 17

On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace), Magsasaka at
Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others (respondents) filed before the Court
a Petition for Writ of Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a
Temporary Environmental Protection Order (TEPO)18 (petition for Writ of Kalikasan) against herein
petitioners the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the DA, UPLBFI, and
ISAAA, and UPMFI, alleging that the Bt talong field trials violated their constitutional right to health and a
balanced ecology considering, among others, that: (a) the Environmental Compliance Certificate (ECC),
as required by Presidential Decree No. (PD) 1151,19 was not secured prior to the field trials;20 (b) the
required public consultations under the Local Government Code (LGC) were not complied with;21 and (c)
as a regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and the
environment, and that there is no independent, peer-reviewed study showing its safety for human
consumption and the environment.22 Further, they contended that since the scientific evidence as to the
safety of Bt talong remained insufficient or uncertain, and that preliminary scientific evaluation shows
reasonable grounds for concern, the precautionary principle should be applied and, thereby, the field
trials be enjoined.23

On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except UPLB25) and UPMFI,
ordering them to make a verified return within a non-extendible period of ten (10) days, as provided for in
Section 8, Rule 7 of the Rules of Procedure for Environmental Cases.26 Thus, in compliance therewith,
ISAAA, EMB/BPI/FPA, UPLBFI, and UPMFI27 filed their respective verified returns,28 and therein
maintained that: (a) all environmental laws were complied with, including the required public consultations
in the affected communities; (b) an ECC was not required for the field trials as it will not significantly affect
the environment nor pose a hazard to human health; (c) there is a plethora of scientific works and
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literature, peer-reviewed, on the safety of Bt talong for human consumption; (d) at any rate, the safety
of Bt talong for human consumption is irrelevant because none of the eggplants will be consumed by
humans or animals and all materials not used for analyses will be chopped, boiled, and buried following
the conditions of the Biosafety Permits; and (e) the precautionary principle could not be applied as the
field testing was only a part of a continuing study to ensure that such trials have no significant and
negative impact on the environment.29

On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of Appeals for
acceptance of the return of the writ and for hearing, reception of evidence, and rendition of judgment. 31 In
a hearing before the CA on August 14, 2012, UPLB was impleaded as a party to the case and was
furnished by respondents a copy of their petition. Consequently the CA directed UPLB to file its comment
to the petition32 and, on August 24, 2012, UPLB filed its Answer33 adopting the arguments and allegations
in the verified return filed by UPLBFI. On the other hand, in a Resolution34 dated February 13, 2013, the
CA discharged UPMFI as a party to the case pursuant to the Manifestation and Motion filed by
respondents in order to expedite the proceedings and resolution of the latter's petition.

The CA Ruling

In a Decision35 dated May 17, 2013, the CA ruled in favor of respondents and directed petitioners to
pem1anently cease and desist from conducting the Bt talong field trials.36 At the outset, it did not find
merit in petitioners' contention that the case should be dismissed on the ground of mootness, noting that
the issues raised by the latter were "capable of repetition yet evading review" since the Bt talong field trial
was just one of the phases or stages of an overall and bigger study that is being conducted in relation to
the said genetically-modified organism.37 It then held that the precautionary principle set forth under
Section 1,38 Rule 20 of the Rules of Procedure for Environmental Cases 39 is relevant, considering the
Philippines' rich biodiversity and uncertainty surrounding the safety of Bt talong. It noted the possible
irreversible effects of the field trials and the introduction of Bt talong to the market, and found the existing
regulations issued by the DA and the Department of Science and Technology (DOST) insufficient to
guarantee the safety of the environment and the health of the people.40

Aggrieved, petitioners separately moved for reconsideration.41 However, in a Resolution42 dated

September 20, 2013, the CA denied the same and remarked that introducing genetically modified plant
into the ecosystem is an ecologically imbalancing act.43 Anent UPLB 's argument that the Writ
of Kalikasan violated its right to academic freedom, the CA emphasized that the writ did not stop the
research on Bt talong but only the procedure employed in conducting the field trials, and only at this time
when there is yet no law ensuring its safety when introduced to the environment. 44

Dissatisfied, petitioners filed their respective petitions for review on certiorari before this Court.

The Proceedings Before the Court

In a Decision45 dated December 8, 2015, the Court denied the petitions and accordingly, affinned with
modification the ruling of the CA.46 Agreeing with the CA, the Court held that the precautionar; principle
applies in this case since the risk of harm from the field trials of Bt talong remains uncertain and there
exists a possibility of serious and irreversible harm. The Court observed that eggplants are a staple
vegetable in the country that is mostly grown by small-scale farmers who are poor and marginalized; thus,
given the country's rich biodiversity, the consequences of contamination and genetic pollution would be
disastrous and irreversible.47

The Court likewise agreed with the CA in not dismissing the case for being moot and academic despite
the completion and termination of the Bt talong field trials, on account of the following exceptions to the
mootness principle: (a) the exceptional character of the situation and the paramount public interest is
involved; and (b) the case is capable of repetition yet evading review. 48
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Further, the Court noted that while the provisions of DAO 08-2002 were observed, the National Biosafety
Framework (NBF) established under EO 514, series of 2006 49 which requires public participation in all
stages of biosafety decision-making, pursuant to the Cartagena Protocol on Biosafety50 which was
acceded to by the Philippines in 2000 and became effective locally in 2003, was not complied
with.51 Moreover, the field testing should have been subjected to Environmental Impact Assessment
(EIA), considering that it involved new technologies with uncertain results. 52

Thus, the Court permanently enjoined the field testing of Bt talong. In addition, it declared DAO 08-2002
null and void for failure to consider the provisions of the NBF. The Court also temporarily enjoined any
application for contained use, field testing, propagation, commercialization, and importation of genetically
modified organisms until a new administrative order is promulgated in accordance with law. 53

The Issues Presented in the Motions for Reconsideration

Undaunted, petitioners moved for reconsideration,54 arguing, among others, that: (a) the case should
have been dismissed for mootness in view of the completion and termination of the Bt talong field trials
and the expiration of the Biosafety Permits;55 (b) the Court should not have ruled on the validity of DAO
08-2002 as it was not raised as an issue;56 and (c) the Court erred in relying on the studies cited in the
December 8, 2015 Decision which were not offered in evidence and involved Bt corn, not Bt talong.57

In their Consolidated Comments,58 respondents maintain, in essence, that: (a) the case is not mooted by
the completion of the field trials since field testing is part of the process of commercialization and will
eventually lead to propagation, commercialization, and consumption of Bt talong as a consumer
product;59 (b) the validity of DAO 08-2002 was raised by respondents when they argued in their petition
for Writ of Kalikasan that such administrative issuance is not enough to adequately protect the
Constitutional right of the people to a balanced and healthful ecology; 60 and (c) the Court correctly took
judicial notice of the scientific studies showing the negative effects of Bt technology and applied the
precautionary principle.61

The Court's Ruling

The Court grants the motions for reconsideration on the ground of mootness.

As a rule, the Court may only adjudicate actual, ongoing controversies.62 The requirement of the
existence of a "case" or an "actual controversy" for the proper exercise of the power of judicial review
proceeds from Section 1, Article VIII of the 1987 Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the comis of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. (Emphasis supplied)

Accordingly, the Court is not empowered to decide moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In
other words, when a case is moot, it becomes non-justiciable.63

An action is considered "moot" when it no longer presents a justiciable controversy because the issues
involved have become academic or dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
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parties. There is nothing for the court to resolve as the determination thereof has been overtaken by
subsequent events.64

Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount public
interest are involved; third, when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.65 Thus, jurisprudence recognizes these four instances as exceptions to the mootness
principle.

In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of exceptional
character and paramount public interest is involved, and (b) it is likewise capable of repetition yet evading
review. Hence, it was excepted from the mootness principle.66 However, upon a closer scrutiny of the
parties' arguments, the Court reconsiders its ruling and now finds merit in petitioners' assertion that the
case should have been dismissed for being moot and academic, and that the aforesaid exceptions to the
said rule should not have been applied.

I. On the paramount public interest exception.

Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a case involves
paramount public interest in relation to the mootness principle. However, a survey of cases would show
that, as a common guidepost for application, there should be some perceivable benefit to the public which
demands the Court to proceed with the resolution of otherwise moot questions.

In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the validity of
Republic Act No. (RA) 4880,68 which prohibits the early nomination of candidates for elective offices and
early election campaigns or partisan political activities became moot by reason of the holding of the 1967
elections before the case could be decided. Nonetheless, the Court treated the petition as one for
prohibition and rendered judgment in view of "the paramount public interest and the undeniable necessity
for a ruling, the national elections [of 1969] being barely six months away." 69

In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election protest subject of
that case notwithstanding the supervening death of one of the contestants. According to the Court, in an
election contest, there is a paramount need to dispel the uncertainty that beclouds the real choice of the
electorate.71

In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential Proclamation No.

1017, s. 2006,73 which declared a state of National Emergency, even though the same was lifted before a
decision could be rendered. The Court explained that the case was one of exceptional character and
involved paramount public interest, because the people's basic rights to expression, assembly, and of the
press were at issue.74

In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and corrupt practices
under Section 3 (e) of RA 3019.76 One of the accused appealed the conviction, while the other filed a
petition for certiorari before the Court. While the appellant died during the pendency of his appeal, the
Court still ruled on the merits thereof considering the exceptional character of the appeals in relation to
each other, i.e., the two petitions were so intertwined that the absolution of the deceased was
determinative of the absolution of the other accused.77

More recently, in Funa v. Manila Economic and Cultural Office (MECO),78the petitioner prayed that the
Commission on Audit (COA) be ordered to audit the MECO which is based in Taiwan, on the premise that
it is a government-owned and controlled corporation.79 The COA argued that the case is already moot
and should be dismissed, since it had already directed a team of auditors to proceed to Taiwan to audit
the accounts of MECO.80 Ruling on the merits, the Court explained that the case was of paramount public
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interest because it involved the COA's performance of its constitutional duty and because the case
concerns the legal status of MECO, i.e., whether it may be considered as a government agency or not,
which has a direct bearing on the country's commitment to the One China Policy of the People's Republic
of China.81

In contrast to the foregoing cases, no perceivable benefit to the public - whether rational or practical - may
be gained by resolving respondents' petition for Writ of Kalikasan on the merits.

To recount, these cases, which stemmed from herein respondents petition for Writ of Kalikasan, were
mooted by the undisputed expiration of the Biosafety Permits issued by the BPI and the completion and
termination of the Bt talong field trials subject of the same.82 These incidents effectively negated the
necessity for the reliefs sought by respondents in their petition for Writ of Kalikasan as there was no
longer any field test to enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the
reliefs petitioner sought and granted by the CA were no longer capable of execution.

At this juncture, it is important to understand that the completion and termination of the field tests do not
mean that herein petitioners may inevitably proceed to commercially propagate Bt talong.83 There are
three (3) stages before genetically-modified organisms (GMOs) may become commercially available
under DAO 08-200284 and each stage is distinct, such that "[s]ubsequent stages can only proceed if the
prior stage/s [is/]are completed and clearance is given to engage in the next regulatory
stage."85 Specifically, before a genetically modified organism is allowed to be propagated under DAO 08-
2002: (a) a permit for propagation must be secured from the BPI; (b) it can be shown that based on the
field testing conducted in the Philippines, the regulated article will not pose any significant risks to the
environment; (c) food and/or feed safety studies show that the regulated article will not pose any
significant risks to human and animal health; and (d) if the regulated article is a pest-protected plant, its
transformation event has been duly registered with the FPA. 86

As the matter never went beyond the field testing phase, none of the foregoing tasks related to
propagation were pursued or the requirements therefor complied with. Thus, there are no guaranteed
after-effects to the already concluded Bt talong field trials that demand an adjudication from which the
public may perceivably benefit. Any future threat to the right ,of herein respondents or the public in
general to a healthful and balanced ecology is therefore more imagined than real.

In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness of Bt talong -
or GMOs, for that matter - until an actual and justiciable case properly presents itself before the Court. In
his Concurring Opinion87 on the main, Associate Justice Marvic M.V.F. Leonen (Justice Leonen) had aptly
pointed out that "the findings [resulting from the Bt talong field trials] should be the material to provide
more rigorous scientific analysis of the various claims made in relation to Bt talong."88 True enough, the
concluded field tests ·- like those in these cases – would yield data that may prove useful for future
studies and analyses. If at all, resolving the petition for Writ of Kalikasan would unnecessarily arrest the
results of further research and testing on Et talong, and even GMOs in general, and hence, tend to hinder
scientific advancement on the subject matter.

More significantly, it is clear that no benefit would be derived by the public in assessing the merits of field
trials whose parameters are not only unique to the specific type of Bt talong tested, but are now, in fact,
rendered obsolete by the supervening change in the regulatory framework applied to GMO field testing.
To be sure, DAO 08-2002 has already been superseded by Joint Department Circular No. 1, series of
201689 (JDC 01-2016), issued by the Department of Science and Technology (DOST), the DA, the DENR,
the Department of Health (DOH), and the Department of Interior and Local Government (DILG), which
provides a substantially different regulatory framework from that under DAO 08-2002 as will be detailed
below. Thus, to resolve respondents' petition for Writ of Kalikasan on its merits, would be tantamount to
an unnecessary scholarly exercise for the Court to assess alleged violations of health and environmental
rights that arose from a past test case whose bearings do not find any - if not minimal -- relevance to
cases operating under today's regulatory framework.
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Therefore, the paramount public interest exception to the mootness rule should not have been
applied.1âwphi1

II. The case is not one capable of repetition vet evading review.

Likewise, contrary to the Court's earlier ruling,90 these cases do not fall under the "capable of repetition
yet evading review" exception.

The Court notes that the petition for Writ of Kalikasan specifically raised issues only against the field
testing of Bt talong under the premises 'of DAO 08,..2002,91 i.e., that herein petitioners failed to: (a) fully
inform the eople regarding the health, environment, and other hazards involved;92 and (b) conduct any
valid risk assessment before conducting the field trial.93 As further pointed out by Justice Leonen, the
reliefs sought did not extend far enough to enjoin the use of the results of the field trials that have been
completed. Hence, the petition's specificity prevented it from falling under the above exception to the
mootness rule.94

More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case from being
one capable of repetition so as to warrant review despite its mootness. To contextualize, JDC 01-2016
states that:

Section 1. Applicability. This Joint Department Circular shall apply to the research, development, handling
and use, transboundary movement, release into the environment, and management of genetically-
modified plant and plant products derived from the use of modern technology, included under "regulated
articles."

As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the conduct of
field testing now applies.

Notably, the new framework under JDC 01-2016 is substantially different from that under DAO 08-2002.
In fact, the new parameters in JDC 01-2016 pertain to provisions which prompted the Court to invalidate
D'AO 08-2002. In the December 8, 2015 Decision of the Court, it was observed that: (a) DAO 08-2002
has no mechanism to mandate compliance with inten1ational biosafety protocols; 95 (b) DAO 08-2002
does not comply with the transparency and public participation requirements under the NBF; 96 and (c) risk
assessment is conducted by an informal group, called the Biosafety Advisory Team of the DA, composed
of representatives from the BPI, Bureau of Animal Industry, FPA, DENR, DOH, and DOST. 97

Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment, and the DA was
allowed to consider the expert advice of, and guidelines developed by, relevant inteniational organizations
and regulatory authorities of countries with significant experience in the regulatory supervision of the
regulated article.98 However, under JDC 01-2016, the CODEX Alimentarius Guidelines was adopted to
govern the risk assessment of activities involving the research, development, handling and use,
transboundary movement, release into the environment, and management of genetically modified plant
and plant products derived from the use of modem biotechnology.99Also, whereas DAO 08-2002 was
limited to the DA's authority in regulating the importation and release into the environment of plants and
plant products derived from the use of modern biotechnology,100 under JDC 01-2016, various relevant
government agencies such as the DOST, DOH, DENR, and the DILG now participate in all stages of the
biosafety decision-making process, with the DOST being the central and lead agency. 101

JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases involving
field trials and requires applications for permits and permits already issued to be made public by posting
them online in the websites of the NCBP and the BPI.102 The composition of the Institutional Biosafety
Committee (IBC) has also been modified to include an elected local official in the locality where the field
testing will be conducted as one of the community representatives.103 Previously, under DAO 08-2002,
the only requirement for the community representatives is that they shall not be affiliated with the
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applicant and shall be in a position to represent the interests of the communities where the field testing is
to be conducted.104

JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and Technical
Review Panel (STRP), the pool of scientists that evaluates the risk assessment submitted by the
applicant for field trial, commercial propagation, or direct use of regulated articles. Aside from not being
an official, staff or employee of the DA or any of its attached agencies, JDC 01-2016 requires that
members of the STRP: (a) must not be directly or indirectly employed or engaged by a company or
institution with pending applications for pennits under JDC 01-2016; (b) must possess technical expertise
in food and nutrition, toxicology, ecology, crop protection, environmental science, molecular biology and
biotechnology, genetics, plant breeding, or animal nutrition; and (c) must be well-respected in the
scientific community.105

Below is a tabular presentation of the differences between the relevant portions of DAO 08-2002 and JDC
01-2016:

DAO 08-2002 JDC 01-2016

1. As to coverage and government participation

WHEREAS, under Title IV, Chapter 4, Section ARTICLE I. GENERAL PROVISIONS

19 of the Administrative Code of 1987, the
Department of Agriculture, through the Bureau Section 1. Applicability. This Joint Department
of Plant Industry, is responsible for the Circular shall apply to the research,
production of improved planting materials and development, handling and use, transboundary
protection of agricultural crops from pests and movement, release into the environment, and
diseases; and management of genetically-modified plant and
plant products derived from the use of modern
xxxx biotechnology, included under "regulated
articles."
PART I
GENERAL PROVISIONS xxxx

xxxx ARTICLE III. ADMINISTRATIVE

PART I FRAMEWORK
GENERAL PROVISIONS
Section 4. Role of National Government
xxxx Agencies Consistent with the NBF and the laws
granting their powers and functions, national
Section 2 government agencies shall have the following
Coverage roles:

A. Scope - This Order covers the importation or A. [DA]. As the principal agency of the Philippine
release into the environment of: 1. Any plant Government responsible for the promotion of
which has been altered or produced through the agricultural and rural growth and development
use of modem biotechnology if the donor so as to ensure food security and to contribute
organism, host organism, or vector or vector to poverty
agent belongs to any of the genera or taxa
classified by BPI as meeting the definition of alleviation, the DA shall take the lead in
plant pest or is a medium for the introduction of addressing biosafety issues related to the
noxious weeds; or
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2. Any plant or plant product altered or produced country's agricultural productivity and food
through the use of modern biotechnology which security.x x x.
may pose significant risks to human health and
the environment based on available scientific B. [DOST]. As the premier science and
and technical information. technology body in the country, the DOST shall
take the lead in ensuring that the best available
B. Exceptions. - This Order shall not apply to the science is utilized and applied in adopting
contained use of a regulated article, which is biosafety policies, measures and guidelines, and
within the regulatory supervision of NCBP. in making biosafety decision.

x xx.

C. [DENR]. As the primary government agency

responsible for the conservation management,
development and proper use of the country's
environment and natural resources, the DENR
shall ensure that environmental assessments
are done and impacts identified in biosafety
decisions. x x x.

D. [DOH]. The DOH, as the principal authority

on health, shall formulate guidelines in
assessing the health impacts posed by modern
biotechnology and its applications. x x x.

E. [DILG]. The DILG shall coordinate with the

DA, DOST, DENR and DOH in overseeing the
implementation of this Circular in relation to the
activities that are to be implemented in specific
LGUs, particulady in relation to the conduct of
public consultations as required under the Local
Government Code. x x x.

2. As to guidelines in risk assessment

PART I ARTICLE II. BIOSAFETY DECISIONS

GENERAL PROVISIONS Section 3. Guidelines in Making Biosafety

Decisions
xxxx
The principles under the NBF shall guide
Section 3 concerned agencies in making biosafety
Risk Assessment decisions, including:

A. Principles of Risk Assessment - No regulated xxxx

article shall be allowed to be imported or
released into the environment without the B. Risk Assessment. Risk assessment shall be
conduct of a risk assessment performed in mandatory and central in making biosafety
accordance with this Order. The following decisions, consistent with policies and standards
principles shall be followed when performing a on risk assessment issued by the NCBP; and
risk assessment to determine whether a guided by Annex III of the Cartagena Protocol
regulated article poses significant risks to human on Biosafety. Pursuant to the NBF, the following
health and the environment: principles shall be followed when performing a
risk assessment to determine whether a
 10

1. The risk assessment shall be carried out in a regulated article poses significant risks to human
scientifically sound and transparent manner health and the environment.
based on available scientific and technical
information. The expert advice of, and guidelines 1. The risk assessment shall be carried out in a
developed by, relevant international scientifically sound and transparent manner
organizations and regulatory authorities of based on available scientific and technical
countries with significant experience in the information. The expert advice of and guidelines
regulatory supervision of the regulated article developed by, relevant international
shall be taken into account in the conduct of risk organizations, including intergovernmental
assessment. bodies, and regulatory authorities of countries
with significant experience in the regulatory
x x xx supervision of the regulated article shall be
taken into account. In the conduct of risk
assessment, CODEX Alimentarius Guidelines
on the Food Safety Assessment of Foods
Derived from the Recombinant-DNA Plants shall
internationally adopted as well as other
internationally accepted consensus documents.

x x x x (Underscoring supplied)

3. As to public participation

PART III ARTICLE V. FIELD TRIAL OF REGULATED

APPROVAL PROCESS FOR FIELD TESTING ARTICLES
OF REGULATE ARTICLES
Section 12. Public Participation for Field Trial
xxxx
A. The BPI shall make public all applications and
Section 8 Biosafety Permits for Field Trial through posting
on the NCBP and BPI websites, and in the
Requirements for Field Testing offices of the DA and DOST in the province, city,
or municipality where the field trial will be
xxxx conducted.

x x xx
G. Public Consultation. - The applicant, acting
through its IBC, shall notity and invite comments
on the field testing proposal from the barangays
and city/municipal governments with jurisdiction
over the field test sites. The IBC shall post for
three (3) consecutive weeks copies of the Public
Information Sheet for Field Testing approved by
the BPI in at least three (3) conspicuous places
in each of the concerned barangay and
city/municipal halls. The Public Information
Sheet for Field Testing shall, among others,
invite interested parties to send their comments
on the proposed field testing to BPI within a
period of thirty (30) days from the date of
posting. It shall be m a language understood in
the community. During the comment period, any
interested person may submit to BPI written
comments regarding the application. The
applicant shall submit proof of posting in the
 11

form of certifications from the concerned

barangay captains and city/municipal mayors or
an affidavit stating the dates and places of
posting duly executed by the responsible officer
or his duly authorized representative.

4. As to membership in the Institutional Biosafety Committee

PART I ARTICLE III. ADMINISTRATIVE

GENERAL PROVISIONS
FRAMEWORK
Section 1
xxxx
Definition of Terms
Section 6. Institutional Biosafety Committee
xxxx
The company or institution applying for and
L. "IBC" means the Institutional Biosafety granted permits under this Circular shall
Committee established by an applicant in constitute an IBC prior to the contained use,
preparation for the field testing of a regulated confined test, or field trial of a regulated article.
article and whose membership has been The membership of the IBC shall be approved
approved by BPI. The JBC shall be responsible by the DOST-BC for contained use or confined
for the initial evaluation of the risk assessment test, or by the DA-BC for field trial. The IBC is
and risk management strategies of the applicant responsible for the conduct of the risk
for field testing. It shall be composed of at least assessment and preparation of risk
five (5) members, three (3) of whom shall be management strategies of the applicant for
designated as "scientist-members" who shall contained use, confined test, or field trial. It shall
possess scientific and technological knowledge make sure that the environment and human
and expertise sufficient to enable them to health are safeguarded in the conduct of any
evaluate and monitor properly any work of the activity involving regulated articles.
applicant relating to the field testing of a
regulated article. The other members, who shall The IBC shall be composed of at least five (5)
be designated as "community representatives", members, three (3) of whom shall be
shall not be affiliated with the applicant apart designated, as scientist-members and two (2)
from being members of its IBC and shall be in a members shall be community representatives.
position to represent the interests of the All scientist-members must possess scientific or
communities where the field testing is to be technological knowledge and expertise sufficient
conducted. For the avoidance of doubt, NCBP to enable them to property evaluate and monitor
shall be responsible for approving the any work involving regulated articles conducted
membership of the IBC for contained use of a by the applicant.
regulated article.
The community regresentative must not be
x x x x (Underscoring supplied) affiliated with the applicant, and must be in a
position to regresent the interests of the
communities where the activities are to be
conducted. One of the community
regresentatives shall be an elected official of the
LGU. The other community representative shall
be selected from the residents who are
members of the Civil Society Organizations
represented in the Local Poverty Reduction
Action Team, pursuant to DILG Memorandum
Circular No. 2015-45. For multi-location trials,
community representatives of the IBC shall be
 12

designated per site. x x x. (Underscoring

supplied)

5. As to the composition and qualifications of the members of the Scientific and Technical
Review

Panel

PART I ARTICLE III. ADMINISTRATIVE FRAMEWORK

GENERAL PROVISIONS
xxxx
Section 1
Section 7. Scientific and Technical Review
Definition of Terms Panel (STRP) The DA shall create a Scientific
and Technical Review Panel composed of a
xxxx pool of non-DA scientists with expertise in the
evaluation of the potential risks of regulated
EE. "STRP" means the Scientific and Technical articles to the environment and health. x x x
Review Panel created by BPI as an advisory
body, composed of at least three (3) reputable xxxx
and independent scientists who shall not be
employees of the Department and who have the The DA shall select scientists/experts in the
relevant professional background necessary to STRP, who shall meet the following
evaluate the potential risks of the proposed qualifications:
activity to human health and the environment
based on available scientific and technical A. Must not be an official, staff or employee of
information. the DA or any of its attached agencies;

x x x x (Underscoring supplied) B. Must not be directly or indirectly employed or

engaged by a company or institution with
pending applications for permits covered by this
Circular;

C. Possess technical expertise in at least one of

the following fields: food and nutrition;
toxicology, ecology, crop protection,
environmental science, molecular biology and
biotechnology, genetics, plant breeding, animal
nutrition; and

D. Well-respected in the scientific community as

evidenced by positions held in science-based
organizations, awards and recognitions,
publications in local and international peer-
reviewed scientific journals.

x x x x (Underscoring supplied)

Based on the foregoing, it is apparent that the regulatory framework now applicable in conducting risk
assessment in matters involving the research, development, handling, movement, and release into the
environment of genetically modified plant and plant products derived from the use of modem
biotechnology is substantially different from that which was applied to the subject field trials. In this
regard, it cannot be said that the present case is one capable of repetition yet evading review.
 13

The essence of cases capable of repetition yet evading review was succinctly explained by the Court
in Belgica v. Ochoa, Jr.,106 where the constitutionality of the Executive Department's lump-sum,
discretionary funds under the 2013 General Appropriations Act, known as the Priority Development
Assistance Fund (PDAF), was assailed. In that case, the Court rejected the view that the issues related
thereto had been rendered moot and academic by the reforms undertaken by the Executive Department
and former President Benigno Simeon S. Aquino III's declaration that he had already "abolished the
PDAF." Citing the historical evolution of the ubiquitous Pork Barrel System, which was the source of the
PDAF, and the fact that it has always been incorporated in the national budget which is enacted annually,
the Court ruled that it is one capable of repetition yet evading review, thus:

Finally, the application of the fourth exception [to the rule on mootness] is called for by the recognition
that the preparation and passage of the national budget is, by constitutional imprimatur, an affair
of annual occurrence. The relevance of the issues before the Court does not cease with the passage of
a "PDAF-free budget for 2014." The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to petitioners' claim that
"the same dog will just resurface wearing a different collar." In Sanlakas v. Executive Secretary, the
government had already backtracked on a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "[t]o prevent similar questions from re-emerging." The
situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and
hence; must not evade judicial review.107 (Emphases supplied)

Evidently, the "frequent" and "routinary" nature of the Pork Barrel Funds and the PDAF are wanting
herein. To reiterate, the issues in these cases involve factual considerations which are peculiar only to the
controversy at hand since the petition for Writ of Kalikasan is specific to the field testing of Bt talong and
does not involve other GMOs.

At this point, the Court discerns that there are two (2) factors to be considered before a case is deemed
one capable of repetition yet evading review: (1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action.

Here, respondents cannot claim that the duration of the subject field tests was too short to be fully
litigated. It must be emphasized that the Biosafety Permits for the subject field tests were issued on
March 16, 2010 and June 28, 2010, and were valid for two (2) years. However, as aptly pointed out by
Justice Leonen, respondents filed their petition for Writ of Kalikasan only on April 26, 2012 - just a few
months before the Biosafety Permits expired and when the field testing activities were already
over.108 Obviously, therefore, the cessation of the subject field tests before the case could be resolved
was due to respondents' own inaction.

Moreover, the situation respondents complain of is not susceptible' to repetition. As discussed above,
DAO 08-2002 has already been superseded by JDC 01-2016. Hence, future applications for field testing
will be governed by JDC 01-2016 which, as illustrated, adopts a regulatory framework that is substantially
different from that of DAO 08-2002.

Therefore, it was improper for the Court to resolve the merits of the case which had become moot in view
of the absence of any valid exceptions to the rule on mootness, and to thereupon rule on the objections
against the validity and consequently nullify DAO 08-2002 under the premises of the precautionary
principle.

In fact, in relation to the latter, it is observed that the Court should not have even delved into the
constitutionality of DAO 08-2002 as it was merely collaterally challenged by respondents, based on the
constitutional precepts of the people's rights to infonnation on matters of public concern, to public
participation, to a balanced and healthful ecology, and to health.109 A cursory perusal of the petition for
 14

Writ of Kalikasan filed by respondents on April 26, 2012 before the Court shows that they essentially
assail herein petitioners' failure to: (a) fully infom1 the people regarding the health, environment, and
other hazards involved;110 and (b) conduct any valid risk assessment before conducting the field
trial.111 However, while the provisions of DAO 08-2002 were averred to be inadequate to protect (a) the
constitutional right of the people to a balanced and healthful ecology since "said regulation failed, among
others, to anticipate 'the public implications caused by the importation of GMOs in the
Philippines"';112and (b) "the people from the potential harm these genetically modified plants and
genetically modified organisms may cause human health and the environment, [and] thus, x x x fall short
of Constitutional compliance,"113 respondents merely prayed for its amendment, as well as that of the
NBF, to define or incorporate "an independent, transparent, and comprehensive scientific and socio-
economic risk assessment, public information, consultation, and participation, and providing for their
effective implementation, in accord with international safety standards[.]"114 This attempt to assail the
constitutionality of the public info1mation and consultation requirements under DAO 08-2002 and the NBF
constitutes a collateral attack on the said provisions of law that runs afoul of the wdlsettled rule that the
constitutionality of a statute cannot be collaterally attacked as constitutionality issues must be pleaded
directly and not collaterally.115 Verily, the policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid, absent a clear and unmistakable
showing to the contrary, in deference to the doctrine of separation of powers. This means that the
measure had first been carefuliy studied by the executive department and found to be in accord with the
Constitution before it was finally enacted and approved.116

All told, with respondents' petition for Writ of Kalikasan already mooted by the expiration of the Biosafoty
Permits and the completion of the field trials subject of these cases, and with none of the exceptions to
the mootness principle properly attending, the Court grants the instant motions for reconsideration and
hereby dismisses the aforesaid petition. With this pronouncement, no discussion on the substantive
merits of the same should be made.

WHEREFORE, the motions for reconsideration are GRANTED. The Decision dated December 8, 2015 of
the Court, which affirmed with modification the Decision dated May 17, 2013 and the Resolution dated
September 20, 2013 of the Court of Appeals in CA-G.R. SP No. 00013, is hereby SET ASIDE for the
reasons above-explained. A new one is ENTERED DISMISSING the Petition for Writ of
Continuing Mandamus and Writ of Kalikasan with Prayer for the Issuance of a Temporary Environmental
Protection Order (TEPO) filed by respondents Greenpeace Southeast Asia (Philippines), Magsasaka at
Siyentipiko sa Pagpapaunlad ng Agrikultura, and others on the ground of mootness.

SO ORDERED.

ESTELA M. PERLAS-BERNABE

EN BANC

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH

APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

 15

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT

AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA
PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-
Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,

INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA

(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA
PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013
and Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00013 which permanently enjoined the conduct of field trials for genetically modified
eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace

Southeast Asia, a regional office of Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental environmental organization which operates in
over 40 countries and with an international coordinating body in Amsterdam, Netherlands.
 16

It is well known for independent direct actions in the global campaign to preserve the
environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA)
is an international non-profit organization founded in 1990 "to facilitate the acquisition and
transfer of agricultural biotechnology applications from the industrial countries, for the
benefit of resource-poor farmers in the developing world" and ultimately "to alleviate
hunger and poverty in the developing countries." Partly funded by the United States Agency
for International Development (USAID), ISAAA promotes the use of agricultural
biotechnology, such as genetically modified organisms (GMOs).4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a

coalition of local farmers, scientists and NGOs working towards "the sustainable use and
management of biodiversity through farmers' control of genetic and biological resources,
agricultural production, and associated knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally established as the UP College of Agriculture. It
is the center of biotechnology education and research in Southeast Asia and home to at
least four international research and extension centers. Petitioner UPLB Foundation, Inc.
(UPLBFI) is a private corporation organized "to be an instrument for institutionalizing a
rational system of utilizing UPLB expertise and other assets for generating additional
revenues and other resources needed by [UPLB]". Its main purpose is to assist UPLB in
"expanding and optimally utilizing its human, financial, and material resources towards a
focused thrust in agriculture, biotechnology, engineering and environmental sciences and
related academic programs and activities." A memorandum of agreement between UPLBFI
and UPLB allows the former to use available facilities for its activities and the latter to
designate from among its staff such personnel needed by projects.5

Petitioner University of the Philippines (UP) is an institution of higher learning founded in

1908. Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President
Gloria Macapagal-Arroyo, UP was declared as the national university tasked "to perform its
unique and distinctive leadership in higher education and development." Among others, UP
was mandated to "serve as a research university in various fields of expertise and
specialization by conducting basic and applied research and development, and promoting
research in various colleges and universities, and contributing to the dissemination and
application of knowledge."7

The other individual respondents are Filipino scientists, professors, public officials and
ordinary citizens invoking their constitutionally guaranteed right to health and balanced
ecology, and suing on their behalf and on behalf of future generations of Filipinos.

Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses
living organisms or substances from those organisms to make or modify a product, to
improve plants or animals, or to develop microorganisms for specific uses." 8 Its many
applications include agricultural production, livestock, industrial chemicals and
pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment
of the National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It
is the premier national research and development (R & D) institution applying traditional
 17

and modern biotechnologies in innovating products, processes, testing and analytical

services for agriculture, health, energy, industry and development.9

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among
others, to "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks" and to "formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and
their genetic materials for the protection of public health, environment and personnel and
supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation
of the importation or introduction, movement and field release of potentially hazardous
biological materials in the Philippines. The guidelines also describe the required physical and
biological containment and safety procedures in handling biological materials. This was
followed in 1998 by the "Guidelines on Planned Release of Genetically Manipulated
Organisms (GMOs) and Potentially Harmful Exotic Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern biotechnology has great potential for human
well-being if developed and used with adequate safety measures for the environment and
human health." Its main objectives, as spelled out in Article 1, are the "conservation of
biological diversity, the sustainable use of its components and the fair and equitable sharing
of the benefits arising out of the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety

(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to
contribute to ensuring an adequate level of the safe transfer, handling and use of living
modified organisms resulting from modern biotechnology that may have adverse effects on
the conservation and sustainable use of biological diversity, taking into account risks to
human health, and specifically focusing on transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution
No. 92 or the "Resolution Concurring in the Ratification of the Cartagena Protocol on
Biosafety (CPB) to the UN Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating
the government policy of promoting the safe and responsible use of modern biotechnology
and its products as one of several means to achieve and sustain food security, equitable
access to health services, sustainable and safe environment and industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No.
08 providing rules and regulations for the importation and release into the environment of
plants and plant products derived from the use of modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant
which has been altered or produced through the use of modem biotechnology if the donor
organism, host organism, or vector or vector agent belongs to the genera or taxa classified
by the Bureau of Plant Industry (BPI) as meeting the definition of plant pest or is a medium
for the introduction of noxious weeds; or (2) any plant or plant product altered through the
use of modem biotechnology which may pose significant risks to human health and the
 18

environment based on available scientific and technical information.

The country's biosafety regulatory system was further strengthened with the issuance of EO
No. 514 (EO 514) on March 17, 2006, "Establishing the National Biosafety Framework
(NBF), Prescribing Guidelines for its Implementation, and Strengthening the NCBP." The
NBF shall apply to the development, adoption and implementation of all biosafety policies,
measures and guidelines and in making decisions concerning the research, development,
handling and use, transboundary movement, release into the environment and management
of regulated articles.12

EO 514 expressly provides that, unless amended by the issuing departments or agencies,
DAO 08-2002, the NCBP Guidelines on the Contained Use of Genetically Modified
Organisms, except for provisions on potentially harmful exotic species which were repealed,
and all issuances of the Bureau of Food and Drugs Authority (FDA) on products of modem
biotechnology, shall continue to be in force and effect. 13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between

UPLBFI, ISAAA and UP Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants

that are resistant to the fruit and shoot borer. Other partner agencies involved in the project
were UPLB through its Institute of Plant Breeding, Maharastra Hybrid Seed Company
(MAHYCO) of India, Cornell University and the Agricultural Biotechnology Support Project II
(ABSPII) of US AID.

As indicated in the Field Trial Proposal 15 submitted by the implementing institution (UPLB),
the pest-resistant crop subject of the field trial was described as a "bioengineered
eggplant." The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were
incorporated into the eggplant (talong) genome to produce the protein CrylAc which is toxic
to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran
larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred." 16

BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter,
field testing of Bt talong commenced on various dates in the following approved trial sites:
Kabacan, North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao
City; and Bay, Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.)
filed a petition for writ of kalikasan and writ of continuing mandamus with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO). They alleged that the Bt
talong field trials violate their constitutional right to health and a balanced ecology
considering that (1) the required environmental compliance certificate under Presidential
Decree (PD) No. 1151 was not secured prior to the project implementation; (2) as a
regulated article under DAO 08-2002, Bt talong is presumed harmful to human health and
the environment, and there is no independent, peer-reviewed study on the safety of Bt
talong for human consumption and the environment; (3) a study conducted by Professor
Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn, while local
scientists also attested to the harmful effects of GMOs to human and animal health;
 19

(4) Bt crops can be directly toxic to non-target species as highlighted by a research

conducted in the US which demonstrated that pollen from Bt maize was toxic to the
Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects
have increased mortality when fed on larvae of a maize pest, the corn borer, which had
been fed on Bt, and hence non-target beneficial species that may feed on eggplant could be
similarly affected; (6) data from China show that the use of Bt crops (Bt cotton) can
exacerbate populations of other secondary pests; (7) the built-in pesticides of Bt crops will
lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by
GMO manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing
area set by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because
pollinators such as honeybees can fly as far as four kilometers and an eggplant is 48%
insect-pollinated. The full acceptance by the project proponents of the findings in the
MAHYCO Dossier was strongly assailed on the ground that these do not precisely and
adequately assess the numerous hazards posed by Bt talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with
the required public consultation under Sections 26 & 27 of the Local Government Code, A
random survey by Greenpeace on July 21, 2011 revealed that ten households living in the
area immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of
Pangasugan in Baybay, Leyte complained about the lack of information on the nature and
uncertainties of the Bt talong field testing in their barangay. The Davao City Government
likewise opposed the project due to lack of transparency and public consultation. It ordered
the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with
protocols relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the city
government's policy on "sustainable and safe practices." On the other hand,
the Sangguniang Bayan of Sta. Barbara, Iloilo passed a resolution suspending the field
testing due to the following: lack of public consultation; absence of adequate study to
determine the effect of Bt talong field testing on friendly insects; absence of risk
assessment on the potential impacts of genetically modified (GM) crops on human health
and the environment; and the possibility of cross-pollination of Bt eggplants with native
species or variety of eggplants, and serious threat to human health if these products were
sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary
principle, the Bt talong field testing being a classic environmental case where scientific
evidence as to the health, environmental and socio-economic safety is insufficient or
uncertain and preliminary scientific evaluation indicates reasonable grounds for concern that
there are potentially dangerous effects on human health and the environment.

The following reliefs are thus prayed for:

a. Upon the filing [of this petition], a Temporary Environment Protection Order should be
issued: (i) enjoining public respondents BPI and FPA of the DA from processing for field
testing, and registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all
pending field testing of Bt talong anywhere in the Philippines; and (in) ordering the
uprooting of planted Bt talong for field trials as their very presence pose significant and
irreparable risks to human health and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement
system under the Environmental Management Bureau;

(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field
 20

tests report, regulatory compliance reports and supporting documents, and other material
particulars of the Bt talong field trial;

(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the
barangays, municipalities, and provinces affected by the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in

consultation with stakeholders, to submit an acceptable draft of an amendment of the
National Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08,
defining or incorporating an independent, transparent, and comprehensive scientific and
socio-economic risk assessment, public information, consultation, and participation, and
providing for their effective implementation, in accord with international safety standards;
and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to
conduct balanced nationwide public information on the nature of Bt talong and Bt
talong field trial, and a survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file
their respective returns and explain why they should not be judicially sanctioned for
violating or threatening to violate or allowing the violation of the above-enumerated laws,
principles, and international principle and standards, or committing acts, which would result
into an environmental damage of such magnitude as to prejudice the life, health, or
property of petitioners in particular and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are
found to be violating the abovementioned laws, principles, and international standards; and
recommend to Congress curative legislations to effectuate such
order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB, 18-
a
ordering them to make a verified return within a non-extendible period often (10) days, as
provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all
argued that the issuance of writ of kalikasan is not proper because in the implementation of
the Bt talong project, all environmental laws were complied with, including public
consultations in the affected communities, to ensure that the people's right to a balanced
and healthful ecology was protected and respected. They also asserted that the Bt
talong project is not covered by the Philippine Environmental Impact Statement (PEIS) Law
and that Bt talong field trials will not significantly affect the quality of the environment nor
pose a hazard to human health. ISAAA contended that the NBF amply safeguards the
environment policies and goals promoted by the PEIS Law. On its part, UPLBFI asserted that
there is a "plethora of scientific works and literature, peer-reviewed, on the safety of Bt
talong for human consumption."20 UPLB, which filed an Answer21 to the petition before the
CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in
the field trial stage as none of the eggplants will be consumed by humans or animals, and
all materials that will not be used for analyses will be chopped, boiled and buried following
the Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history
 21

of safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2
million hectares of land in the Philippines which have been planted with Bt corn since 2003,
and the absence of documented significant and negative impact to the environment and
human health. The statements given by scientists and experts in support of the allegations
of Greenpeace, et al. on the safety of Bt corn was also addressed by citing the contrary
findings in other studies which have been peer-reviewed and published in scientific journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts and the allegations therein being mere
assertions and baseless conclusions of law. EMB, BPI and FPA questioned the legal standing
of Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to suffer
any direct injury as a result of the Bt talong field tests. They likewise prayed for the denial
of the petition for continuing mandamus for failure to state a cause of action and for utter
lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their constitutional rights to health and a balanced
ecology were violated or threatened to be violated by the conduct of Bt talong field trials.
Insofar as the field trials in Davao City, the actual field trials at Bago Oshiro started on
November 25, 2010 but the plants were uprooted by Davao City officials on December 17-
18, 2010. There were no further field trials conducted and hence no violation of
constitutional rights of persons or damage to the environment, with respect to Davao City,
occurred which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under
the MOU, its responsibility was only to handle the funds for the project in their trial site. It
pointed out that in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for
Field Testing, and Terminal Report (Davao City Government) by respondent Leonardo R.
Avila III, nowhere does UPMFI appear either as project proponent, partner or implementing
arm. Since UPMFI, which is separate and distinct from UP, undertook only the fund
management of Bt talong field test project the duration of which expired on July 1, 2011, it
had nothing to do with any field trials conducted in other parts of the country.

Finally, it is argued that the precautionary principle is not applicable considering that the
field testing is only a part of a continuing study being done to ensure that the field trials
have no significant and negative impact on the environment. There is thus no resulting
environmental damage of such magnitude as to prejudice the life, health, property of
inhabitants in two or more cities or provinces. Moreover, the issues raised by Greenpeace,
et al. largely involve technical matters which pertain to the special competence of BPI
whose determination thereon is entitled to great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of
the return of the writ and for hearing, reception of evidence and rendition of judgment. 22

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the
following procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file
the petition for writ of kalikasan; (2) whether or not said petition had been rendered moot
and academic by the alleged termination of the Bt talong field testing; and (3) whether or
not the case presented a justiciable controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al.
possess the requisite legal standing to file the petition for writ of kalikasan; (2)
assuming arguendo that the field trials have already been terminated, the case is not yet
 22

moot since it is capable of repetition yet evading review; and (3) the alleged non-
compliance with environmental and local government laws present justiciable controversies
for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method
wherein the expert witnesses of both parties testify at the same time. Greenpeace, et al.
presented the following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr.
Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the
opposing side were the expert witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora),
Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cariño (Dr. Cariño), and Dr. Peter Davies (Dr.
Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle
Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr.
Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an
Urgent Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in
the subject matter of the case as a broad-based coalition of advocates for the advancement
of modern biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention
stating that the latter had no direct and specific interest in the conduct of Bt talong field
trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents
are DIRECTED to:chanRoblesvirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.

No costs.

SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of
the people. Concurring with Dr. Malayang's view that the government must exercise
precaution "under the realm of public policy" and beyond scientific debate, the appellate
court noted the possible irreversible effects of the field trials and the introduction of Bt
talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases27 finds relevance in the present controversy. Stressing the fact that
the "over-all safety guarantee of the bt talong" remains unknown, the appellate court cited
the testimony of Dr. Cariño who admitted that the product is not yet safe for consumption
because a safety assessment is still to be done. Again, the Decision quoted from Dr.
Malayang who testified that the question of Bt talong's safety demands maximum
precaution and utmost prudence, bearing in mind the country's rich biodiversity. Amid the
uncertainties surrounding the Bt talong, the CA thus upheld the primacy of the people's
 23

constitutional right to health and a balanced ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI,
the CA in its Resolution dated September 20, 2013 rejected the argument of UPLB that the
appellate court's ruling violated UPLB's constitutional right to academic freedom. The
appellate court pointed out that the writ of kalikasan originally issued by this Court did not
stop research on Bt talong but only the particular procedure adopted in doing field trials and
only at this time when there is yet no law in the form of a congressional enactment for
ensuring its safety and levels of acceptable risks when introduced into the open
environment. Since the writ stops the field trials of Bt talong as a procedure but does not
stop Bt talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of
biotic (living) and non-biotic things interacting as a living community in a particular space
and time. In the ecosystem are found specific and particular biotic and non-biotic entities
which depend on each other for the biotic entities to survive and maintain life. A critical
element for biotic entities to maintain life would be that their populations are in a proper
and natural proportion to others so that, in the given limits of available non-biotic entities in
the ecosystem, no one population overwhelms another. In the case of the Philippines, it is
considered as one of the richest countries in terms of biodiversity. It has so many plants
and animals. It also has many kinds of other living things than many countries in the world.
We do not fully know how all these living things or creatures interact among themselves.
But, for sure, there is a perfect and sound balance of our biodiversity as created or
brought about by God out of His infinite and absolute wisdom. In other words, every
living creature has been in existence or has come into being for a purpose. So, we humans
are not supposed to tamper with any one element in this swirl of interrelationships among
living things in our ecosystem. Now, introducing a genetically modified plant in our
intricate world of plants by humans certainly appears to be an ecologically
imbalancing act. The damage that it will cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on
November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J.
Davies (Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and
Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora
(Ph.D in Entomology), Dr. Flerida Cariño (Ph.D in Insecticide Toxicology), Dr. Ben Malayang
(Ph.D in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in
unison in admitting that bt talong is an altered plant. x x x

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration
of an otherwise natural state of affairs. It is designed and intended to alter natural feed-
feeder relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant
to alter its natural order which is meant to eliminate one feeder (the borer) in order to give
undue advantage to another feeder (the humans). The genetic transformation is one
designed to make bt talong toxic to its pests (the targeted organisms). In effect, bt
talong kills its targeted organisms. Consequently, the testing or introduction of bt
talong into the Philippines, by its nature and intent, is a grave and present danger
to (and an assault on) the Filipinos' constitutional right to a balanced
ecology because, in any book and by any yardstick, it is an ecologically imbalancing event
or phenomenon. It is a willful and deliberate tampering of a naturally ordained feed-feeder
 24

relationship in our environment. It destroys the balance of our biodiversity. Because it

violates the conjunct right of our people to a balanced ecology, the whole constitutional
right of our people (as legally and logically construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so,
there is no factual evidence of it actually causing acute or chronic harm to any or a number
of ostensibly identifiable perms, on the other hand, there is correspondingly no factual
evidence either of it not causing harm to anyone. However, in a study published on
September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by
Professor Gilles-Eric Seralini from the University of Caen and backed by the France-based
Committee of Independent Research and Information on Genetic Engineering came up with
a finding that rats fed with Roundup-tolerant genetically modified corn for two years
developed cancers, tumors and multiple organ damage. The seven expert witnesses who
testified in this Court in the hearing conducted on November 20, 2012 were duly confronted
with this finding and they were not able to convincingly rebut it. That is why we, in deciding
this case, applied the precautionary principle in granting the petition filed in the case at
bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the Filipino people to a balanced and healthful
ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of
mandamus is justified and warranted.28 (Additional Emphasis supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:

I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE
SAME IS ALREADY MOOT AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE
SAME RAISES POLITICAL QUESTIONS.

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN

ACCEPTABLE DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY
FRAMEWORK OF THE PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO.
08," AND IN PRAYING THAT THE COURT OF APPEALS "RECOMMEND TO
CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW THE
WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH THE
COURT OF APPEALS IS WITHOUT JURISDICTION TO DO SO.

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS
GOVERNING THE STUDY, INTRODUCTION AND USE OF GMOS IN THE
 25

PHILIPPINES AND COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO 08-
2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR
WRIT OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT
PRIMARY JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT
CASE WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.

VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN

FAVOR OF RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF

THE BT TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS,
RULES AND REGULATIONS IN ORDER TO ENSURE THAT THE PEOPLE'S RIGHT
TO A BALANCED AND HEALTHFUL ECOLOGY ARE PROTECTED AND
RESPECTED.

B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO

NOT CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE,
HEALTH AND PROPERTY OF INHABITANTS OF TWO OR MORE PROVINCES OR
CITIES.

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY

PRINCIPLE IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO
PRESENT AN IOTA OF EVIDENCE TO PROVE THEIR CLAIM.

VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING

MANDAMUS AGAINST PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC
PROGRESS.29ChanRoblesVirtualawlibrary
 26

G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG)
assails the CA Decision granting the petition for writ of kalikasanand writ of continuing
mandamus despite the failure of Greenpeace, et al. (respondents) to prove the requisites
for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly
show signs of toxicity in genetically engineered eggplant and other crops, these studies are
insubstantial as they were not published in peer-reviewed scientific journals. Respondents
thus failed to present evidence to prove their claim that the Bt talong field trials violated
environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application
in this case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was
not formally offered in evidence. In volunteering the said article to the parties, petitioners
lament that the CA manifested its bias towards respondents' position and did not even
consider the testimony of Dr. Davies who stated that "Seralini's work has been refuted by
International committees of scientists"30 as shown by published articles critical of Seralini's
work.

Petitioners aver that there was no damage to human health since no Bt talong will be
ingested by any human being during the field trial stage. Besides, if the results of said
testing are adverse, petitioners will not allow the release of Bt talong to the environment, in
line with the guidelines set by EO 514. The CA thus misappreciated the regulatory process
as approval for field testing does not automatically mean approval for propagation of the
same product. And even assuming that the field trials may indeed cause adverse
environmental or health effects, the requirement of unlawful act or omission on the part of
petitioners or any of the proponents, was still absent. Respondents clearly failed to prove
there was any unlawful deviation from the provisions of DAO 08-2002. The BPI's factual
finding on the basis of risk assessment on the Bt talong project should thus be accorded
respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the environment, lacking in specifics which only
indicates that there was really nothing to preserve, rehabilitate or restore as there was
nothing damaged or adversely affected in the first place. As to the supposed inadequacy
and ineffectiveness of existing regulations, these are all political questions and policy issues
best left to the discretion of the policy-makers, the Legislative and Executive branches of
government. Petitioners add that the CA treads on judicial legislation when it recommended
the re-examination of country's existing laws and regulations governing studies and
research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence
necessary to prove actual or imminent injury to them or the environment as to render the
controversy ripe for judicial determination. It points out that nowhere in the testimonies
during the "hot-tub" presentation of expert witnesses did the witnesses for respondents
claim actual or imminent injury to them or to the environment as a result of the Bt
talong field tests, as they spoke only of injury in the speculative, imagined kind without any
factual basis. Further, the petition for writ of kalikasan has been mooted by the termination
of the field trials as of August 10, 2012.
 27

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason
of the nature, character, scale, duration, design, processes undertaken, risk assessments
and strategies employed, results heretofore recorded, scientific literature, the safeguards
and other precautionary measures undertaken and applied, the Bt talong field tests did not
or could not have violated the right of respondents to a balanced and healthful ecology. The
appellate court apparently misapprehended the nature, character, design of the field trials
as one for "consumption" rather than for "field testing" as defined in DAO 08-2002, the sole
purpose of which is for the "efficacy" of the eggplant variety's resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne
by competent evidence on record" (admitted exhibits) 31:
118. Since the technology's inception 50 years ago, studies have shown that genetically
modified crops, including Bt talong, significantly reduce the use of pesticides by
farmers in growing eggplants, lessening pesticide poisoning to humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of
insect-resistant genetically modified crops. Moreover, that insect-resistant
genetically modified crops significantly reduce the use of pesticides in growing
plants thus lessening pesticide poisoning in humans, reducing pesticide load in the
environment and encouraging more biodiversity in farms.

120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the
Australian cotton industry by largely controlling Lepidopteran pests. To date, it
had no significant impact on the invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Btcotton may provide an opportunity
for conservation of these predators in cotton ecosystems by reducing insecticide
use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not
negatively affect monarch butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners because
flight distance of the pollinators is a deterrent to cross pollination. Studies reveal
that there can be no cross pollination more than a fifty (50) meter distance.
 28

xx
xx

135. There is a 50 year history of safe use and consumption of agricultural products
sprayed with commercial Bt microbial pesticides and a 14 year history of safe
consumption of food and feed derived from Bt crops.

xx
xx

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food
Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini
relied upon by [respondents] was dismissed as "scientifically flawed", thus
providing no plausible basis to the proposition that Bt talong is dangerous to public
health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized

Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the
ASEAN region to implement a regulatory system for transgenic crops (which
includes DAO 08-[2]002). Accordingly, the said regulatory system has also served
as a model for other countries in the region and other developing countries outside
of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the
environment. In fact, since BPI started regulating GM crops in 2002, they have monitored
171 field trials all over the Philippines and said agency has not observed any adverse
environmental effect caused by said field trials. Plainly, respondents failed to show proof of
"specific facts" of environmental damage of the magnitude contemplated under the Rules of
Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty
of scientists and other academicians of UP, of which they have been deprived without due
process of law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's
pronouncement of their guilt despite the preponderance of evidence on the environmental
safety of the field trials, as evident from its declaration that "the over-all safety guarantee
of Bt talong remains to be still unknown." It thus asks if in the meantime, petitioners must
bear the judicial stigma of being cast as violators of the right of the people to a balanced
and healthful ecology for an injury or damage unsubstantiated by evidence of scientific
plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in
 29

the exercise of UPLB's academic freedom, which is a constitutional right. In this case, there
is nothing based on evidence on record or overwhelming public welfare concern, such as the
right of the people to a balanced and healthful ecology, which would warrant restraint on
UPLB's exercise of academic freedom. Considering that UPLB complied with all laws, rules
and regulations regarding the application and conduct of field testing of GM eggplant, and
was performing such field tests within the prescribed limits of DAO 08-2002, and there
being no harm to the environment or prejudice that will be caused to the life, health or
property of inhabitants in two or more cities or provinces, to restrain it from performing the
said field testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case,
in violation of the standards set by the Rules of Procedure for Environmental Cases. It
points out that the Bt eggplants are not yet intended to be introduced into the Philippine
ecosystem nor to the local market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero
who is an entomologist and expert in integrated pest management and insect taxonomy,
and Dr. Davies, a member of the faculty of the Department of Plant Biology and Horticulture
at Cornell University for 43 years and served as a senior science advisor in agricultural
technology to the United States Department of State. Both had testified that based on
generally accepted and scientific methodology, the field trial of Bt crops do not cause
damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It
asserts that the CA could not support its Decision and Resolution on the pure conjectures
and imagination of one witness. Basic is the rule that a decision must be supported by
evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country
precisely because of the serious safety concerns on the impact of Bt talong toxin on human
and animal health and the environment through field trial contamination. They point out
that the inherent and potential risks and adverse effects of GM crops are recognized in the
Cartagena Protocol and our biosafety regulations (EO 514 and DAO 08-2002).
Contamination may occur through pollination, ingestion by insects and other animals, water
and soil run off, human error, mechanical accident and even by stealing was inevitable in
growing Bt talong in an open environment for field trial. Such contamination may manifest
even after many years and in places very far away from the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful
omission, respondents assert that, in the face of scientific uncertainties on the safety and
effects of Bt talong, petitioners omitted their crucial duties to conduct environmental impact
assessment (EIA); evaluate health impacts; get the free, prior and informed consent of the
people in the host communities; and provide remedial and liability processes in the approval
of the biosafety permit and conduct of the field trials in its five sites located in five
provinces. These omissions have put the people and the environment at serious and
irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic

Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition for
a GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of
Genetically Modified Corn in the Philippines" published by MASIPAG in 2013; and the
 30

published report of the investigation conducted by Greenpeace, "White Corn in the

Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed positive
results for samples purchased from different stores in Sultan Kudarat, Mindanao, indicating
that they were contaminated with GM corn varieties, specifically the herbicide tolerant
and Bt insect resistant genes from Monsanto, the world's largest biotech company based in
the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following
sources: the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and
RI Vazquez-Padron, all from the Universidad Nacional Autonoma de Mexico; the conclusion
made by Prof. Eric-Gilles Seralini of the University of Caen, France, who is also the president
of the Scientific Council of the Committee for Independent Research and Information on
Genetic Engineering (CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's
data submitted in support of the application to grow and market Bt eggplant in India; and
the medical interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano
of the University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St.
Luke's Medical Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier
authored by Prof. David A. Andow of the University of Minnesota, an expert in
environmental assessment in crop science. The review was made upon the request in 2010
of His Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests of India,
where MAHYCO is based. MAHYCO is the corporate creator and patent owner of the Bt gene
inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized 32 by
respondents, as follows:
Studies/interpretation by Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, For Bt modified crops (like Bt talong), there is

R. Gutierrez, R. concern over its potential

Lopez-Revilla, and RI Vazquez- allergenicity. CrylAcc (the gene inserted

Padron in Bt talong) protoxin is a potent immunogen
(triggers immune response); the protoxin is
immunogenic by both the intraperitoneal (injected)
and intragastric (ingested) route; the immune
response to the protoxin is both systemic and
mucosal; and CrylAcc protoxin binds to surface
proteins in the mouse small intestine. These suggest
that extreme caution is required in the use
of CrylAcc in food crops.

Prof. Eric-Gilles Seralini His key findings showed statistical significant

differences between group of animals fed GM and
non-GM eggplant that raise food safety concerns
and warrant further investigation.

Dr. Romeo Quijano & Dr. Wency Interpreting Prof. Seralini's findings, the altered
Kiat, Jr. condition of rats symptomatically indicate
hazards for human health.
 31

Prof. David A. Andow The MAHYCO dossier is inadequate to support the

needed environmental risk assessment; MAHYCO's
food safety assessment does not comply with
international standards; and that MAHYCO relied on
dubious scientific assumptions and disregarded real
environmental threats.
As to environmental effects, respondents said these include the potential for living modified
organisms, such as Bt talong tested in the field or released into the environment, to
contaminate non-GM traditional varieties and other wild eggplant relatives and turn them
into novel pests, outcompete and replace their wild relatives, increase dependence on
pesticides, or spread their introduced genes to weedy relatives, potentially creating
superweeds, and kill beneficial insects.

Respondents then gave the following tabulated summary 33 of field trial contamination
cases drawn from various news reports and some scientific literature submitted to the
court:
What happened Impact How did it occur

During 2006 and 2007, In July 2011, Bayer eventually Field trials were
traces of three varieties of agreed to a $750m US dollar conducted between
unapproved genetically settlement resolving claims with the mid-1990s and
modified rice owned by Bayer about 11,000 US farmers for early 2000s. The US
Crop Science were found in market losses and clean-up Department of
US rice exports in over 30 costs. Agriculture (USDA)
countries worldwide. reported these field
The total costs to the rice trials were the likely
industry are likely to have been sources of the
over $1bn worldwide. contamination
between the modified
rice and conventional
varieties. However, it
was unable to
conclude [if it] was
caused by gene flow
(cross pollination) or
mechanical mixing.

In 2009, unauthorised Canada lost exports to its main In the late 1980s a
GElinseed (also known as European market worth public research
'flax') produced by a public hundreds of millions of dollars institution, the Crop
research institution was and non-GElinseed farmers Development Centre
discovered in food in several have faced huge costs and in Saskatoon, Saskat-
EU countries, having been market losses. chewan, developed a
imported from Canada. GElinseed variety
FP96—believed to be
the origin of the
contamination.

During 2004, the Thai Exports of papaya to Europe GEpapaya is not

government found that have been hit because of fears grown commercially in
papaya samples from 85 that contamination could have Thailand, so it was
 32

farms were genetically spread. The Thai government clear that the
modified. The contamination said it was taking action to contamination
continued into 2006 and it is destroy the contaminated trees. originated from the
likely that the GE government station
contamination reached the experimentally
food chain. breeding GE papaya
trees. Tests that
showed that one third
of papaya orchards
tested in the eastern
province of Rayong
and the north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated papaya
seeds in July 2005.
The owners said that
a research station
gave them the seeds.

In the US in 2002, seeds Prodigene, the company Seeds from the

from a GEmaize pharma-crop responsible, was fined $3m for GEmaize crop
containing a pig vaccine grew tainting half a million bushels of sprouted voluntarily in
independently among normal soya bean with a trial vaccine the following season.
soybean crops. used to prevent stomach upsets
in piglets. Prodigene agreed to
pay a fine of $250,000 and to
repay the government for the
cost of incinerating the soya
bean that had been
contaminated with genetically
altered corn.

In 2005, Greenpeace The European Commission The source of the

discovered that GE rice seeds adopted emergency measures contamination
had been illegally sold in (on 15 August 2008) to require appears to have been
Hubei, China. Then, in 2006, compulsory certification for the the result of illegal
GE rice event Bt63 was found imports of Chinese rice products planting of GEseeds.
in baby food sold in Beijing, that could contain the Seed companies in
Guangzhou and Hong Kong. unauthorised GE rice Bt63. China found to have
In late 2006, GE rice Bt63 sold GErice hybrid
was found to be The Chinese government took seed to farmers
contaminating exports in several measures to try to stop operated directly
Austria, France, the UK and the contamination, which under the university
Germany. In 2007 it was included punishing seed developing GM rice. It
again found in EU imports to companies, confiscating has been reported
Cyprus, Germany, Greece, GEseed, destroying GErice that the key scientist
Italy and Sweden. grown in the field and tightening sat on the board of
control over the food chain. one GEseed company.
 33

In 2005, the European The European Commission The contamination

Commission announced that blocked US grain import unless arose because
illegal Bt10 GEmaize they could be guaranteed free Syngenta's quality
produced by GEseed of Bt10. The USDA fined control procedures did
company Syngenta had Syngenta $375,000. There are not differentiate
entered the European food no figures for the wider costs. between Bt10 and its
chain. The GEmaize Bt10 sister commercial line,
contains a marker gene that Bt11. As a result, the
codes for the widely-used experimental and
antibiotic ampicillin, while the substantially different
Bt11 does not. According to Bt10 line was
the international Codex mistakenly used in
Alimentarius Guideline for breeding. The error
Conduct of Food Safety was detected four
Assessment of Foods Derived years later when one
from Recombinant- of the seed companies
DNA:Plants: 'Antibiotic developing Bt11
resistance genes used in food varieties adopted
production that encode more sophisticated
resistance to clinically used analytical techniques.
antibiotics should not be
present in foods' because it
increases the risk of antibiotic
resistance in the population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season
consists of a maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080
sq. meters,"34 respondents emphasize that as shown by the above, contamination knows no
size and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the
issuance of writ of kalikasan, respondents assert that while the Bt talong field trials were
conducted in only five provinces, the environmental damage prejudicial to health extends
beyond the health of the present generation of inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury,
respondents said that biosafety evidence could not be readily contained in a corpus delicti to
be presented in court. Indeed, the inherent and potential risks and adverse effects brought
by GMOs are not like dead bodies or wounds that are immediately and physically identifiable
to an eyewitness and which are resulting from a common crime. Precisely, this is why the
Cartagena Protocol's foundation is on the precautionary principle and development of sound
science and its links, to social and human rights law through its elements of public
awareness, public participation and public right to know. This is also why the case was
brought under the Rules of Procedure for Environmental Cases and not under ordinary or
other rules, on the grounds of violation of the rights of the Filipino people to health, to a
balanced and healthful ecology, to information on matters of national concern, and to
participation. The said Rules specifically provides that the appreciation of evidence in a case
like this must be guided by the precautionary principle.
 34

As to the non-exhaustion of administrative remedies being raised by petitioners as ground

to dismiss the present petition, respondents said that nowhere in the 22 sections of DAO
08-2002 that one can find a remedy to appeal the decision of the DA issuing the field
testing permit. What is only provided for is a mechanism for applicants of a permit, not
stakeholders like farmers, traders and consumers to appeal a decision by the BPI-DA in case
of denial of their application for field testing. Moreover, DAO 08-2002 is silent on appeal
after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO
514 explicitly states that the application of biosafety regulations shall be made in
accordance with existing laws and the guidelines therein provided. Hence, aside from risk
assessment requirement of the biosafety regulations, pursuant to the PEISS law and
Sections 12 and 13 of the Philippine Fisheries Code of 1998, an environmental impact
statement (EIS) is required and an environmental compliance certificate (ECC) is necessary
before such Bt crop field trials can be conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for
Environmental Cases do not empower courts to adjudicate a controversy that is moot and
academic. It points out that respondents failed to satisfy all the requirements of the
exception to the rule on actual controversies. The Biosafety Permit is valid for only two
years, while the purported stages in the commercialization, propagation and registration
of Bt talong still cannot confer jurisdiction on the CA to decide a moot and academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and "ministerial" duty to re-examine and reform the
biosafety regulatory system, and to propose curative legislation. The law (EO 514) cited by
respondents does not impose such duty on public petitioners. As for the Cartagena Protocol,
it laid down a procedure for the evaluation of the Protocol itself, not of the Philippine
biosafety regulatory system. ISAAA stresses that the CA is without jurisdiction to review the
soundness and wisdom of existing laws, policy and regulations. Indeed, the questions posed
by the respondents are political questions, which must be resolved by the executive and
legislative departments in deference to separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken
in saying that these are limited to appeals. The concerned public may invoke Section 8 (G)
of DAO 08-2002 which grants them the right to submit their written comments on the BPI
regarding the field testing permits, or Section 8 (P) for the revocation and cancellation of a
field testing permit. Respondents' failure to resort to the internal mechanisms provided in
DAO 08-2002 violates the rule on exhaustion of administrative remedies, which warrants
the dismissal of respondents' petition.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority
for field testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative
Code of 1987, the DA through the BPI, is responsible for the production of improved
planting materials and protection of agricultural crops from pests and diseases. In bypassing
the administrative remedies available, respondents not only failed to exhaust a less costly
and speedier remedy, it also deprived the parties of an opportunity to be heard by the BPI
which has primary jurisdiction and knowledgeable on the issues they sought to raise.
 35

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of
the Consolidated Comment as irrelevant because it was not formally offered in evidence and
are hearsay. Majority of those records contain incomplete information and none of them
pertain to the Bt talong. Respondents likewise presented two misleading scientific studies
which have already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study
by Prof. Seralini in 2012. Petitioner notes that both articles have been withdrawn from
publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with
only 126 usable records out of the 338 records. In contrast, petitioner cites the work of
Nicolia, A., A. Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the last 10
years of genetically engineered crop safety research." The authors evaluated 1,783 scientific
records of GE crop safety research papers, reviews, relevant opinions and scientific reports
from 2002-2012. Their findings concluded that "the scientific research conducted so far has
not detected any significant hazards directly connected with the use of GE crops." In the
article "Impacts of GM crops on biodiversity," in which scientific findings concluded that
"[o]verall, x x x currently commercialized GM crops have reduced the impacts of agriculture
on biodiversity, through enhanced adoption of conservation tillage practices, reduction of
insecticide use and use of more environmentally benign herbicides and increasing yields to
alleviate pressure to convert additional land into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research (2001-2010), concluded from more than 130
research projects, covering a period of 25 years of research, and involving more than 500
independent research groups, that "biotechnology, and in particular GMOs, are not per se
more risky than e.g. conventional plant breeding technologies." Another article cited is
"Assessment of the health impact of GM plant diets in long-term and multigenerational
animal feeding trials: A literature review" which states that scientific findings show that GM
crops do not suggest any health hazard, and are nutritionally equivalent to their non-GM
counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental
effects of GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified
Crops: Ten Years of Field Research and Commercial Cultivation" which concluded that
"[T]he data available so far provide no scientific evidence that the cultivation of the
presently commercialized GM crops has caused environmental harm." A related article, "A
Meta-Analysis of Effects of Bt Cotton and Maize on Non-target Invertebrates" states that
scientific findings show that non-target insects are more abundant in GM crop fields
like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by

ISAAA, which presented the following comments and criticisms on each of the paper/article
cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same
may not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of
Court; Heirs of Pedro Pasag v. Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was
from engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in
the study was not from Bt talong. Hence, respondents' attempt to extrapolate the
interpretation and conclusion of this study to Bt talong is grossly erroneous and calculated
to mislead and deceive the Honorable Court.
 36

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L.
Moreno-Fierros, et al., which was published in an article entitled A Review of the Food
Safety of Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to
reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The reason is
because of endotoxin contamination in the preparation of the CrylAc protein. Further, when
purified Cry protein was injected to mice through intra-gastric administration, there was no
impact on the immune response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to

assessing potential health risks from human consumption of foods derived from Bt crops can
be questioned because the doses tested in mice is irrelevant to human dietary
exposure, i.e., the doses given were "far in excess of potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled
to any weight and consideration because his sworn statement was not admitted in evidence
by the Court of Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the
differences observed by Seralini's statistical analysis as examples of random biological
variation that occurs when many measurements are made on test animals, and which have
no biological significance. Hence, there are no food safety concerns. Further, petitioner
ISAAA presented in evidence the findings of regulatory bodies, particularly the EFSA and the
FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected Seralini's
findings because the same were based on questionable statistical procedure employed
in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC,
has not revised its earlier decision approving the safety of Bteggplant notwithstanding the
findings of Seralini's assessment. In effect, Seralini's findings and interpretation were
rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same
is not entitled to any weight and consideration because the Court of Appeals did not admit
their sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a
seriously flawed study, making their sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of
Prof. David A. Andow as the work of the National Academy of Sciences of the USA. Such
claim is grossly misleading. In truth, as Prof. David A. Andow indicated in the preface,
the report was produced upon the request of Aruna Rodriguez, a known anti-GM
campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the
environment of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of
conduct of field trials all over the country. He concluded, however, that the dossier is
inadequate for ERA. This is perplexing considering this is the same gene that has been used
in Bt cotton since 1996. Scores of environmental and food safety risk assessment studies
have been conducted and there is wealth of information and experience on its safety.
Various meta-analyses indicate that delaying the use of this already effective Bt brinjal for
managing this devastating pest only ensures the continued use of frequent insecticide
sprays with proven harm to human and animal health and the environment and loss of
potential income of resource-poor small farmers.
 37

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that
the Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the
Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In
effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian
regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the
rigid requirements under Section 8 of DAO 08-2002 already takes into consideration any
and all significant risks not only to the environment but also to human health. The
requirements under Sections 26 and 27 of the Local Government Code are also inapplicable
because the field testing is not among the six environmentally sensitive activities mentioned
therein; the public consultations and prior local government unit (LGU) approval, were
nevertheless complied with. Moreover, the field testing is an exercise of academic freedom
protected by the Constitution, the possibility of Bt talong's commercialization in the future is
but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these
are inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-
serving as it was conducted by respondents Greenpeace and MASIPAG themselves; the
persons who prepared the same were not presented in court to identify and testify on its
findings; and the methods used in the investigation and research were not scientific. Said
studies failed to establish any correlation between Bt corn and the purported environmental
and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment,
for the same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the
joint affidavit of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure
of the respondents to present scientific evidence to prove the claim of environmental and
health damages, respondents are not entitled to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure
that the latter complied with all the requirements under DAO 08-2002, including the
conduct of risk assessment. The applications for field testing of Bt talong thus underwent
the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt
talong. Even before the proponent submitted its application, petitioner BPI conducted a
consultative meeting with the proponent to enlighten the latter about the requirements set
out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of

Section 8 of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant
information as required in Section 8 (A) (1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that the
regulated article has undergone satisfactory testing under contained conditions in the
Philippines, (ii) technical dossier consisting of scientific literature and other scientific
materials relied upon by the applicant showing that Bt talong will not pose any significant
 38

risks to human health and the environment, and (iii) copy of the proposed PIS for Field
Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and

Third. The applications contained the Endorsement of proposal for field testing, duly
approved by the majority of all the members of the respective Institutional Biosafety
Committees (IBC), including at least one community representative, as required by Section
8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for field
testing using the NCBP guidelines. The IBC shall determine if the data obtained under
contained conditions provide sufficient basis to authorize the field testing of the
regulated article. In making the determination, the IBC shall ensure that field testing
does not pose any significant risks to human health and the environment. The IBC
may, in its discretion, require the proponent to perform additional experiments under
contained conditions before acting on the field testing proposal. The IBC shall either endorse
the field testing proposal to the BPI or reject it for failing the scientific risk assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which
requires an applicant for field testing to establish an IBC in preparation for the field testing
of a regulated article and whose membership has been approved by the BPI. Section 1 (L)
of DA AO No. 08, requires that the IBC shall be composed of at least five (5) members,
three (3) of whom shall be designated as "scientist-members" who shall possess scientific
and technological knowledge and expertise sufficient to enable them to evaluate and
monitor properly any work of the applicant relating to the field testing of a regulated article,
and the other members are designated as "community representatives" who are in a
position to represent the interest of the communities where the field testing is to be
conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to
Section 8 (F) of DA AO No. 08, forwarded the complete documents to three (3) independent
Scientific Technical Review Panel (STRP) members. Pending receipt of the risk assessment
reports of the three STRP members, petitioner BPI conducted its own risk assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports
of the three STRP members recommending the grant of Biosafety Permits to UPLB after a
thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing
in each concerned barangays and city/municipal halls of the localities having jurisdiction
over its proposed field trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted
consultative meetings and public seminars in order to provide public information and in
order to give an opportunity to the public to raise their questions and/or concerns regarding
the Bt talongfield trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable
to the Bt talong field testing considering that its subject matter is not mass production for
human consumption. The project entails only the planting of Bt eggplants and cultivation in
a controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt
talong will be commercialized and allowed for cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that

 39

during the period of public consultation under DAO 08-2002, it is BPI which processes
written comments on the application for field testing of a regulated article, and has the
authority to approve or disapprove the application. Also, under Section 8 (P), BPI may
revoke a biosafety permit issued on the ground of, among others, receipt of new
information that the field testing poses significant risks to human health and the
environment. Petitioners assert they were never remiss in the performance of their
mandated functions, as shown by their immediate action with respect to the defective
certification of posting of PIS in Kabacan, North Cotabato. Upon receiving the letter-
complaint on January 24, 2012, BPI readily ordered their re-posting. The same incident
occurred in Davao City, where BPI refused to lift the suspension of biosafety permits until
"rectification of the conditions for public consultation is carried out."

To underscore respondents' blatant disregard of the administrative process, petitioners refer

to documented instances when respondents took the law in their own hands. Greenpeace
barged into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly
entered the entrance gate through the use of a bolt cutter, and then proceeded to uproot
the experimental crops without permission from BPI or the project proponents. Petitioners
submit that the non-observance of the doctrine of exhaustion of administrative remedies
results in lack of cause of action, one of the grounds under the Rules of Court justifying the
dismissal of a complaint.

Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International)
as well as regional (Crop Life Asia) networks of member-companies representing the plant
science industry. It aims to "help improve the productivity of Filipino farmers and contribute
to Philippine food security in a sustainable way." It supports "innovation, research and
development in agriculture through the use of biology, chemistry, biotechnology, plant
breeding, other techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of

petitioners' right to due process because it was prevented from cross-examining the
respondents' expert witnesses and conducting re-direct examination of petitioners' own
witnesses, and being an evidently partial and prejudiced court. It said the petition for writ
of kalikasan should have been dismissed outright as it effectively asks the Court to engage
in "judicial legislation" to "cure" what respondents feel is an inadequate regulatory
framework for field testing of GMOs in the Philippines. Respondents also violated the
doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel
and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege
and prove the particular environmental damage resulting from the Bt talong field testing. It
cites the scientific evidence on record and the internationally accepted scientific standards
on GMOs and GMO field testing, and considering the experience of various countries
engaged in testing GMOs, telling us that GMO field testing will not damage the environment
nor harm human health and more likely bring about beneficial improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize that in
this case, there was no particular environmental damage identified, much less proven;
relied upon the article of Prof. Seralini that was retracted by the scientific journal which
 40

published it; there is no scientific uncertainty on the adverse effects of GMOs to

environment and human health; and did not consider respondents' failure to prove the
insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently placing
the Philippines in the shadows of more developed nations (whose economies rest on
emerging markets importing products from them). It points out that the testing of Bt
talong specifically addresses defined problems such as the need to curb the misuse of
chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral

coalition of advocates of modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:

I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN

THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE

PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY

PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE,

IF SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS,
ANTI-TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO
PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack
on the sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA
knew was highly improper, it nonetheless granted the petition for writ of kalikasan on the
theory that "mere biosafety regulations" were insufficient to guarantee the safety of the
environment and the health of the people.

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to
exhaust administrative remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to
regulated articles prior to any release in the environment for field testing mandated by AO
No. 8 sufficiently complies with the rationale behind the development of the precautionary
principle. By implementing the stringent provisions of DAO 08-2002, in conjunction with the
 41

standards set by EO 514 and the NBF, the government preemptively intervenes and takes
precautionary measures prior to the release of any potentially harmful substance or article
into the environment. Thus, any potential damage to the environment is prevented or
negated. Moreover, international instruments ratified and formally adopted by the
Philippines (CBD and the Cartagena Protocol) provide additional support in the proper
application of the precautionary principle in relation to GMOs and the environment.

On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment,
which must be backed by a reasonable scientific basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to the public respondents in a petition for
writ of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt
talongcould not be declared ... as safe to human health and to ecology, with full scientific
certainty, being an alteration of an otherwise natural state of affairs in our ecology" and
"introducing a genetically modified plant in our intricate world of plants by humans certainly
appears to be an ecologically imbalancing act," among others. BCP finds that this
pronouncement of the CA constitutes an indictment not only against Bt talong but against
all GMOs as well. The appellate court's opinion is thus highly speculative, sweeping and
laced with obvious bias.

There being no credible showing in the record that the conduct of Bt talong field trials
entails real threats and that these threats pertain to serious and irreversible damage to the
environment, BCP maintains that the precautionary principle finds no application in this
case. While Rule 20 of the Rules of Procedure for Environmental Cases states that "[w]hen
there is a lack of full scientific certainty in establishing a causal link between human activity
and environmental effect, the court shall apply the precautionary principle in resolving the
case before it," the CA failed to note that the element of lack of full scientific certainty
pertains merely to the causal link between human activity and environmental effect, and not
the existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect
against technological advancements, especially those in agriculture. Affirming the CA
decision thus sets a dangerous precedent where any and all human activity may be enjoined
based on unfounded fears of possible damage to health or the environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for
resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of

administrative remedies;

4. Application of the law on environmental impact statement/assessment on

projects involving the introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the

environment in two or more provinces, as a result of the Bt talongfield trials;
 42

6. Neglect or unlawful omission committed by the public respondents in

connection with the processing and evaluation of the applications for Bt
talong field testing; and

7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question."38 It refers
particularly to "a party's personal and substantial interest in a case where he has sustained
or will sustain direct injury as a result" of the act being challenged, and "calls for more than
just a generalized grievance."39

However, the rule on standing is a matter of procedure which can be relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest
so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.40 The Court thus had invariably
adopted a liberal policy on standing to allow ordinary citizens and civic organizations to
prosecute actions before this Court questioning the constitutionality or validity of laws, acts,
rulings or orders of various government agencies or instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public
suits. In said case, we recognized the "public right" of citizens to "a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law." We held that such right need not be written in the
Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it the correlative duty
to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future generations. Needless
to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently,
the minors' assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection of that right for the generations
to come.43 (Emphasis supplied.)
 43

The liberalized rule on standing is now enshrined in the Rules of Procedure for
Environmental Cases which allows the filing of a citizen suit in environmental cases. 44 The
provision on citizen suits in the Rules "collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature," and aims to "further
encourage the protection of the environment."45

There is therefore no dispute on the standing of respondents to file before this Court their
petition for writ of kalikasan and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on August
10, 2012. In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because

the issues involved have become academic or dead, or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties.46 Time and again, courts have refrained
from even expressing an opinion in a case where the issues have become moot and
academic, there being no more justiciable controversy to speak of, so that a determination
thereof would be of no practical use or value.47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar and the public;
and fourth, the case is capable of repetition yet evading review. 48 We find that the presence
of the second and fourth exceptions justified the CA in not dismissing the case despite the
termination of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field
trials, it is not certain if they have actually completed the field trial stage for the purpose of
data gathering. At any rate, it is on record that the proponents expect to proceed to the
next phase of the project, the preparation for commercial propagation of the Bt eggplants.
Biosafety permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not
only does this case fall under the "capable of repetition yet evading review" exception to the
mootness principle, the human and environmental health hazards posed by the introduction
of a genetically modified plant, a very popular staple vegetable among Filipinos, is an issue
of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should
first avail of all the means afforded him by administrative processes. The issues which
administrative agencies are authorized to decide should not be summarily taken from them
and submitted to a court without first giving such administrative agency the opportunity to
dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question
which is within the jurisdiction of the administrative tribunal prior to the resolution of that
 44

question by the administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary

doctrine of primary jurisdiction, which are based on sound public policy and practical
considerations, are not inflexible rules. There are many accepted exceptions, such as:
(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where
there is unreasonable delay or official inaction that will irretrievably prejudice the
complainant; (d) where the amount involved is relatively small so as to make the rule
impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (1)
in quo warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI
after public information sheets have been posted (Section 7[G]). Section 7(P) also provides
for revocation of field testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the
following grounds:

1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions

specified in the permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated
article poses significant risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment; or

6. Such other grounds as BPI may deem reasonable to prevent significant risks
to human health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming
serious health and environmental adverse effects of the Bt talong field trials due to
"inherent risks" associated with genetically modified crops and herbicides. They sought the
immediate issuance of a TEPO to enjoin the processing for field testing and registering Bt
talong as herbicidal product in the Philippines, stopping all pending field trials of Bt
talonganywhere in the country, and ordering the uprooting of planted Bt talong in the field
trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ
of continuing mandamus commanding the respondents to: (1) comply with the requirement
of environmental impact statement; (2) submit comprehensive risk assessments, field test
reports, regulatory compliance reports and other material documents on Bt talong including
issued certifications on public consultation with LGUs; (3) work with other agencies to
 45

submit a draft amendment to biosafety regulations; and (4) BPI, in coordination with
relevant government agencies, conduct balanced nationwide public information on the
nature of Bt talong field trial, and a survey of its social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for
the respondents "to determine the questions of unique national and local importance raised
here that pertain to laws and rules for environmental protection, thus [they were] justified
in coming to this Court."50 We take judicial notice of the fact that genetically modified food
is an intensely debated global issue, and despite the entry of GMO crops (Bt corn) into the
Philippines in the last decade, it is only now that such controversy involving alleged damage
or threat to human health and the environment from GMOs has reached the courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to
fulfill specific purposes. The basic strategy employed is to use the sexual mechanism to
reorganize the genomes of two individuals in a new genetic matrix, and select for individuals
in the progeny with the desirable combination of the parental characteristics. Hybridization
is the conventional way of creating variation. In animals, mating is effected by introducing
the desired sperm donor to the female at the right time. In plants, pollen grains from the
desired source are deposited on the stigma of a receptive female plant. Pollination or mating
is followed by fertilization and subsequently development into an embryo. The effect of this
action is the reorganization of the genomes of two parents into a new genetic matrix to
create new individuals expressing traits from both parents. The ease of crossing of mating
varies from one species to another. However, conventional breeding technologies are limited
by their long duration, need for sexual compatibility, low selection efficiency, and restricted
gene pool.51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows

scientists to transfer genes from one organism to any other, circumventing the sexual
process. For example, a gene from a bacterium can be transferred to corn. Consequently,
DNA technology allowed scientists to treat all living things as belonging to one giant
breeding pool. Unlike other natural genome rearrangements phenomena, rDNA introduces
alien DNA sequences into the genome. Even though crossing of two sexually compatible
individuals produces recombinant progeny, the term recombinant DNA is restricted to the
product of the union of DNA segments of different biological origins. The product of
recombinant DNA manipulation is called a transgenic organism. rDNA is the core technology
of biotechnology.52

The organism that is created through genetic engineering is called a genetically modified
organism (GMO). Since the production of the first GMOs in the 1970s, genes have been
transferred between animal species, between plant species, and from animal species to
plant species. Some genes can make an animal or plant grow faster or larger, or both. A
gene produced by flounder (anti-freeze) was transplanted into salmon so that salmon can
be farmed in colder climates. Many species offish are genetically engineered to speed
growth, to alter flesh quality, and to increase cold and disease resistance. In farm animals
such as cattle, genes can be inserted to reduce the amount of fat in meat, to increase milk
production, and to increase superior cheese-making proteins in milk. Biotechnology has also
modified plants to produce its own pesticide, resist common diseases or to tolerate weed-
killing herbicide sprays.53

Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers with
 46

the most fundamental natural components of life; that genetic engineering is scientifically
unsound; and that when scientists transfer genes into a new organism, the results could be
unexpected and dangerous. But no long-term studies have been done to determine what
effects GMO foods might have on human health.54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional
content.55 Genetic modification of plants occurs in several stages:

1. An organism that has the desired characteristic is identified and the specific
gene producing this characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the
cells of the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts
as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that the
gene works adequately when it is introduced into the plant.

4. The gene of interest together with carrier and promoter is then inserted into
bacterium, and is allowed to reproduce to create many copies of the gene
which are then transferred into the plant being modified.

5. The plants are examined to ensure that they have the desired physical
characteristic conferred by the new gene.

6. The genetically modified plants are bred with conventional plants of the same
variety to produce seed for further testing and possibly for future commercial
use. The entire process from the initial gene selection to commercial
production can take up to ten years or more. 56

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major

constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop
plants which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not cost-
effective physical removal of weeds by tilling. The herbicides to which the GM crops are
tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes
providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These
herbicides kill nearly all kinds of plants except those that have the tolerance gene. Another
important benefit is that this class of herbicides breaks down quickly in the soil, eliminating
residue carryover problems and reducing adverse environmental impacts.58

Some plants are genetically engineered to withstand cold climates such as GM strawberries
or soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves
against the damaging effects of the frost; and GM tobacco and potato with anti-freeze gene
 47

from cold water fish. Crops could also be genetically modified to produce micronutrients
vital to the human diet such as the "golden rice" genetically modified to produce beta-
carotene, which can solve Vitamin A deficiency and prevent night blindness in pre-school
children. Other efforts to enhance nutritional content of plants include the genetic
modification of canola to enhance Vitamin E content or better balance fatty acids, cereals for
specific starch or protein, rice for increased iron to reduce anemia, and plant oils to adjust
cholesterol levels. There are also food crops engineered to produce edible vaccines against
infectious diseases that would make vaccination more readily available to children around
the world. For example, transgenic bananas containing inactivated viruses protecting
against common developing world diseases such as cholera, hepatitis B and diarrhea, have
been produced. These vaccines will be much easier to ship, store and administer than
traditional injectable vaccines.59

Overall, biotechnology is perceived as having the potential to either help or hinder

reconciling of the often opposing goals of meeting the human demand for food, nutrition,
fiber, timber, and other natural resources. Biotech crops could put more food on the table
per unit of land and water used in agriculture, thus resulting in decreased land and water
diverted to human uses. Increasing crop yields and reducing the amount of cultivated land
necessary would also reduce the area subject to soil erosion from agricultural practices,
which in turn would limit associated environmental effects on water bodies and aquatic
species and would reduce loss of carbon sinks and stores into the atmosphere. 60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects.
Based on scientific studies, these foods can unleash new pathogens, contain allergens and
toxins, and increase the risk of cancer, herbicide exposure, and harm to fetuses and
infants.61 Independent studies conducted went as far to conclude that GM food and feed are
"inherently hazardous to health."62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to
increase the methionine content for animal feed. The protein was subsequently shown to be
an allergen and the product was never marketed. Genetically modified foods can introduce
novel proteins into the food supply from organisms that are never consumed as foods,
which may pose a health risk. This may elicit potentially harmful immunological responses,
including allergic hypersensitivity.63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its expressed product but from the damage
caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If
confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create
new toxins; it will also implicate the toxin commonly used in other genetically engineered
crops - the Bt toxin which, Pusztai says, is also a lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that
helps determine if the foreign gene has successfully spliced into the host organism, is
another cause of grave concern among scientists. These arm genes might unexpectedly
recombine with disease-causing bacteria or microbes in the environment or in the guts of
 48

animals or humans who eat GM food, thus contributing to the growing public health danger
of antibiotic-resistance of infections that cannot be cured with traditional antibiotics (e.g.,
new strains of salmonella, e-coli, campylobacter and enterococci).66However, recent
advances in genetic engineering indicate that use of such selection markers is likely to
diminish with the anticipated development of alternative types of marker genes. 67

Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate
levels of IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows and
humans) in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer,
breast cancer and lung cancer.68 Dr. Samuel Epstein of the University of Illinois warned of
the danger of high levels of IGF-1 contained in milk cows injected with synthetic bovine
growth hormone (rBGH), which could be a potential risk factor for breast and
gastrointestinal cancers.69

Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to
worsen modern diseases. A report published in the journal Entropy argues that glyphosate
residues, found in most commonly consumed foods in the Western diet courtesy of
genetically engineered sugar, corn, soy and wheat, "enhance the damaging effects of other
food-borne chemical residues and toxins in the environment to disrupt normal body
functions and induce disease." Another research demonstrated a connection between
increased use of Roundup with rising autism rates in the US.70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-
GMO plants, creating super weeds and super pests, harming non-target species, changing
soil microbial and biochemical properties, and threatening biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and
herbicide tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used
by organic farmers as a last option to deal with certain pests like the corn borer. It is feared
that genetically modified Bt crops will speed up resistance to Bt, thereby rendering the
organic spray ineffective.71 Lab and field tests also indicate that common plant pests such as
cotton bollworms, living under constant pressure from GE crops, will soon evolve into
"superpests" completely immune to Bt sprays and other environmentally sustainable
biopesticides.72 In the case of HT, the technology involves the combined use of a chemical
herbicide and a GM plant. The herbicide is generally a broad spectrum herbicide (commonly
glyphosate or glufosinate) which kills weeds while leaving the crop plant alive as it is
genetically engineered to be resistant to the herbicide. The herbicide acts to inhibit an
essential enzyme that is found in all plants and as a result is able to eliminate all weeds
whereas most conventional herbicides are selective in their action and target a limited
number of weeds. Concern has been raised regarding over-reliance on use of one or two
herbicides in increased amounts over time which leads to the emergence of herbicide
resistant weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert
it into a superweed. Pests and weeds will emerge that are pesticide or herbicide resistant,
which means that stronger, more toxic chemicals will be needed to get rid of the pests. 73

It is a well-accepted fact that genetically engineered plants can move beyond the field sites
and cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread
genes further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and
insect pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and
 49

insect pollination create obvious problems for nearby non-GM or organic crops.75 GM maize
could cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at
least 500-700 meters and still be viable and distances of several kilometers have even been
reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop
species that are outcrossers, many environmental factors influence the maximum pollination
distance such as the size of pollen grains, the humidity in the air, and the wind
speed.77Brinjal is usually self-pollinated, but the extent of cross-pollination has been
reported as high as 48% and hence it is classified as cross-pollinated crop. The cone-like
formation of anthers favors self-pollination; but since the stigma ultimately projects beyond
the anthers, there is an ample opportunity for cross-pollination. The rates of natural cross-
pollination may vary depending on genotype, location, and insect activity. The extent of
outcrossing has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of
2.7%) at Asian Vegetable Research Development Centre; however the Indian researchers
have reported 2 to 48% outcrossing in brinjal varieties in India. Outcrossing primarily takes
place with the help of insects.78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a
genetically modified yellow corn which contains the pesticide Bt in every cell, was found in
white corn tortilla chips in Florida, USA. Starlink had been approved for animal feed but not
for human consumption due to concerns about dangerous allergic reactions. The Starlink
incident is often cited to illustrate how difficult it is to keep genetically modified crops from
spreading.79

This gene flow to wild species is particularly alarming to environmentalists. The wild species
from which our agricultural plants originate are an important genetic resource for further
plant breeding if, for example, there is a requirement for improved resistance to climate
change or plant pests. Future plant breeding could be jeopardized if transgenes spread into
these resources. Similarly, agriculture in the centers of origin could be permanently
damaged if transgenes spread into regional landraces.80 Invasive species can replace a
single species or a whole range of species, and they can also change the conditions within
ecological systems. Crossing can cause losses in the genetic information of the original
species, a reduction in genetic diversity and an ongoing incremental change of genetic
identity in the original plants. It is hard to predict which species will become
invasive.81 Indeed, GM crops could threaten the centers of crop biodiversity or outgrow a
local flora to the detriment of native species.82

Bt gene in genetically modified crops might be toxic to non-target organisms that consume
it. When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and
trees. Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen
to the monarch butterfly because initial laboratory studies showed increased mortality in
larvae. However, in another study it was believed that it is unlikely that a significant risk to
those butterflies exists.83

On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins
and their effects on microbial properties and enzyme activities. Results showed that there
was persistence of said proteins in soil under 4-year consecutive cultivation of transgenic
cottons. Soil microbial biomass carbon, microbial activities, and soil enzyme activities
(except urease and phosphodiesterase) significantly decreased in soil under transgenic
cottons.84

In another review, it was stated that the direct effects of the plant that has been modified is
of the most concern since the introduction of transgenic proteins for pest and disease
 50

resistance can involve the production of chemical substances that are potentially toxic to
non-target soil organisms, including mycorrhizal fungi and soil microfauna that are involved
in organic matter decomposition. Experimental studies have shown that the transgenic
proteins Btcrystal toxin and T4 lysozyme, though used to prevent insect damage to the
above ground plant parts, are not only present in root exudates but that they maintain
biological activity after entering the soil.85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which
include compaction and resultant runoff, the killing of beneficial microbes and bacteria, and
the exhaustion of necessary minerals and nutrients that plants require. It was found that
glyphosate "locks up" manganese and other minerals in the soil so that they can't be
utilized by the plants that need them, and that it is toxic to rhizobia, the bacterium that
fixes nitrogen in the soil. There is likewise evidence showing that glyphosates can make
their way to groundwater supplies.86 In a study which tested the effects of the herbicide
Roundup on six species of larval amphibians from North America, it was demonstrated that
when we "use realistic exposure times and the frequently occurring stress of predators
found in natural ecologic communities, one of our most widely applied herbicides (Roundup)
has the potential to kill many species of amphibians." At the same time, the study noted
that Monsanto Corporation has recently released "an additional formulation of glyphosate
(Roundup Biactive), which contains a different (but unspecified) surfactant that is reported
to be less toxic."87

Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of

scientific studies and articles in support of their respective positions on the benefits and
risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the
allegations raised in the petition concerning damage or threat of damage to human health
and the environment resulting from the conduct of Bt talong field trials in the Philippines.
The CA conducted "hot tubbing," the colloquial term for concurrent expert evidence, a
method used for giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge
can hear all the experts discussing the same issue at the same time to explain each of their
points in a discussion with a professional colleague. The objective is to achieve greater
efficiency and expedition, by reduced emphasis on cross-examination and increased
emphasis on professional dialogue, and swifter identification of the critical areas of
disagreement between the experts.88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before
the chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr.
Medina and Dr. Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr.
Ebora and Dr. Cariño appeared for the respondents.

The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural biotechnology in the US Department of
State, and editor for plant physiology for McGraw-Hill Encyclopedia of Science and
Technology.

In his review of agricultural biotechnology around the world, he has not encountered any
 51

verifiable report of a field trial of any GM crop that caused damage to the environment and
to human health. This involves more than 25,000 field trials in 20 years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The same applies to the commercial
cultivation of Bt crops, which have been grown in ever increasing quantities worldwide for
16 years and now comprise the majority of the world acreage of maize and cotton.

A recent European Union (EU) report which concludes that more than 130 EU research
projects covering a period of more than 25 years of research involving more than 500
independent research groups, show that consuming foods containing ingredients derived
from GM crops is no riskier than consuming the same foods containing ingredients from
conventional crops. The World Health Organization (WHO), American Medical Association,
US National Academy of Sciences, European Food Safety Authority (EFSA) all have come to
the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small
number of poorly done studies purportedly claiming negative effects, should be viewed with
great caution and have been highly criticized for their veracity by the overwhelming
majority of highly respected scientists. Many hundreds of studies show no harmful effects.
To date, not a single rigorous study of GM foods in animals has revealed any adverse effect;
not a single case of allergy, illness, cancer, or death have been shown to be associated with
foods derived from GM crops, despite the fact that they have been consumed by Americans
for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas
surrounding those where Bt crops are grown. Over a period of 13 years, cultivation
of Bt cotton in China results in an increase in insect diversity and abundance and a decrease
in crop damaging insects not only in Bt crop fields but also in surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve
food security worldwide, protect against devastating crop losses and famine, improve
nutrition, and some GM crop techniques help combat climate change. 89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief
Science Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University,
Forest Research Institute now Ecosystems Research and Development Bureau of DENR and
the Biotechnology Coalition of the Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton
that is also in Bt eggplant has been found safe by many food and environmental safety
regulatory agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China,
India, Mexico, Argentina, South Africa, Japan and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial
permits were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop
field trials have been reported. No report of adverse effects of Bt crop field trial exists. All
claims of adverse health and environmental effects of Bt crops has not been scientifically
validated. The yearly expansion of GM crop areas in both the developing and industrialized
countries is an attestation of the preference of farmers and the economic benefits that
accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have

reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has
 52

significantly reduced the use of pesticides, and also increased farmer incomes. 90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in
microbiology and biotechnology, Osaka University, Japan, and Intellectual Property
Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA.
Director, and Research Associate Professor, National Institute of Molecular Biology and
Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety
Systems; former Executive Director, Philippine Council for Industry, Energy and Emerging
Technology Research and Development, DOST; former Chair, Biosafety Committee, DOST;
and was a Member of the Institutional Biosafety Committees of UPLB and International Rice
Research Institute (IRRI); and was extensively involved in the isolation, bioassay or efficacy
testing and development of Bt as microbial insecticides for the control of Asian corn borer
and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on
cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial
organisms, and development of insect resistance. To prevent cross-pollination, an isolation
distance of 200 meters from other areas where eggplants are grown or wild relatives are
present, was observed, and with five (5) rows of non-transgenic eggplants that serve as
pollen trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was
not mentioned is the viability of pollen after it was shed and travelled at a certain distance.
Numerous literatures have shown that isolation distances much less than 200 meters is
sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008)
noted that cross-pollination at a distance of 50 meters was nonexistent; and the Asian
Vegetable Research and Development Center (AVRDC) indicated that eggplants produce
perfect flowers which may be cross-pollinated but self-pollination is more common, the
extent of natural crossing depends upon insect activity and this can be avoided by isolating
each variety by 20 meters or with another tall flowering plant. The isolation distance
imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters distance
was found sufficient for pure seed production in India (the same recommendation by Chen
[2001] of AVRDC foundation for seed production purity standards); field studies in 2
locations in India have shown that at a distance beyond 30 meters no more outcrossing
could be detected. Taking all these data into account, the 48% outcrossing being raised by
petitioners is most likely for adjacent plants and therefore not a valid argument for the on-
going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and
parasites of insect pests because it is toxic only to caterpillars or insects belonging to Order
Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly
due to the fact that the gut physiology of these insects is very different from caterpillars,
and not all caterpillars are affected by it. There is a significant number of literature
on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field
trials for Bt talong because of low selection pressure and limited exposure of the insect pest
to Bt talong. Insect resistance is not unique to GM crops as it is a commonly observed
biological reaction of insect pests to control measures like insecticides. In the event Bt
talong is approved for commercialization and will be widely used by fanners, this concern
could be addressed by insect resistance management (IRM); an IRM strategy should be
required prior to the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed
 53

to proceed so that scientists and researchers will be able to generate valuable data and
information which will be helpful in making informed decisions regarding the usefulness of
the technology.91

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at

Berkeley; M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in
Economics), Ohio University; AB Philosophy, UP Diliman; former Undersecretary of
Environment and Natural Resources; served as Environmental Science representative in the
National Biosafety Committee of the Philippines and participated in the drafting of the
Philippines Biosafety Framework; and student, lecturer and advocate of biodiversity, food
security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as against
being used for academic research) in the Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic resources of the country; (b) how they may
cause an imbalance of predator-prey relationships in ecosystems, so that certain species
might dominate ecological niches and erode their biodiversity and ecological stability; (c)
how they may erode the ability of farmers to control their genetic resources to sustain their
cropping systems; and (d) how much are present biosafety protocols able to safeguard the
long-term ecological and economic interests of the Philippines as a particularly biodiversity-
rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that
its biodiversity is its long-term equity to advances in biotechnology, the most robust
measures must be taken so that such resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be

adopted using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures;
meaning, first, adopt a set of standards for determining the level of robustness of biosafety
measures and protocols that would be acceptable in the particular case of the Philippines;
include required scoping and internal and external validity requirements of impact and
safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop biosafety
measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the protocol
with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than
its considerations being restricted only to specific professionals and sectors in the country;
biosafety must be based on an enactment of Congress and open to challenge and
adjudication against international laws; provisions must be made to make it a crime against
humanity to recklessly erode and weaken genetic resources of our people. 92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect
and Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings and seminars, both local and abroad;
served as member in international agricultural assessment sponsored by Food and
Agriculture Organization (FAO), United Nations Environment Program (UNEP), WHO, and the
World Bank; worked on a project for development of resistance to corn borer in 1981 at the
Institute of Plant Breeding in UPLB, and served as researcher and later Associate Professor
of Environmental Management of the UP Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the
following risks or hazards: (a) While natural Bt sprays used in organic farming have little
effect on non-target organisms because the bacterial 'pro-toxin' is in an inactive state and
 54

only becomes toxic when processed and reduced in the gut of certain (targeted) species of
insect larvae, in contrast, Bt plants contain an artificial, truncated Bt gene and less
processing is required to generate the toxin because the toxin is already in its active form.
It is therefore less selective, and may harm non-target insects that do not have the
enzymes to process the pro-toxin, as well as the pests for which it is intended;
(b) Bt proteins from natural Bt sprays degrade relatively quickly in the field as a result of
ultraviolet light and lose most toxic activity within several days to two weeks after
application. In Bt crops, however, the Bt toxin is produced by the internal system of the
plants thus non-degradable by mere exposure to sunlight and generated throughout the
entire lifespan of the plant; (c) Bt talong can also affect the environment by harming
important or beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like
other Btcrops, could be harmful to non-target organisms if they consume the toxin directly
in pollen or plant debris. This could cause harm to ecosystems by reducing the numbers of
important species, or reducing the numbers of beneficial organisms that would naturally
help control the pest species; (c) The evolution of resistance to Bt crops is a real risk and is
treated as such in ecological science throughout the world. If enough individuals become
resistant then the pest control fails; the pest becomes abundant and affects crop yield.
Granting the pest control practice is successful, it may also simply swap one pest for
another, a phenomenon known as secondary pest outbreak. Several studies have shown
that other pest insects are filling the void left by the absence of the one (or very few) insect
pests that Bt crops target, and this is now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified
eggplant varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and
therefore the 200 meters perimeter pollen trap area in the confined field testing set by BPI
is not sufficient. And once contamination occurs, genetic cleanup of eggplant or any other
plant is impossible. Moreover, intra-specific gene flow from Bt talong to other varieties and
populations of eggplants should be examined, as cultivated eggplant (Solanum melongena)
can cross breed with feral populations of S. melongena, and it is possible that cultivated
varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing
between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative
species needs to be evaluated carefully and the consequences of any hybridization that
occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision
for moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of
the reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of
Minnesota also published an 84-pages report on the Environmental Risk Assessment of Bt
Brinjal, and among his conclusions is that several environmental risks were not considered
and nearly all the risk assessment done were inadequate. He concluded that until the risks
were understood or managed, there seems to be little reason to approve Bt
Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta

University; Molecular Biologist, presently Principal Scientist and Head of the Gene
Regulation Laboratory in the Council of Scientific and Industrial Research - Indian Institute
of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive Committee of the
state council of Biotechnology, Government of West Bengal and Chairman of the
Biotechnology group of the state council of Science and Technology, Government of West
Bengal; Visiting Professor of the National Institute of Science, Technology and Development
(CSIR-NISTAD); citizen of India and resident of Kolkata, India.
 55

GMO is a classic example of "paradoxes of consequences", where human actions have

unintended consequences, which are in direct opposition to what was intended. The
difference in controlled laboratory condition and standards, and real life open field level
micro and macro-environment pushes the advantage towards the target and non-target
living system, with time. The pest resistance to Bt toxin and development of herbicide
tolerance (HT) in weeds is just a matter of time. The decade long experience in Bt and Ht
genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to recall
these GMO from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-
independent. It will help the monopoly agribusiness and the expenses of monopolistic
competition or cooperative organic farming. Hot climate and rich biodiversity is detrimental
towards the effectiveness of Bt constructs, and helpful towards unintended gene flow.
Moreover, the genetic manipulation is no way fail safe or exact. Shotgun techniques are
being adapted, aided by focused laboratory based screen of traits - rather than the host or
the full natural product. The GM labeling is avoided to cover up this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form, the
foremost task is to establish rigorous test and assessment procedures. There are excellent
available tools of preteomics, transcriptomics, and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why they are not being employed? In fact, there
is not a single centre to test GM products on behalf of the corporate GM Agribusiness house.
Thus, low level, long term toxicity of GM foods are yet to be tested. I believe the time has
come to establish a standardization facility to carry out such test facility in any country
before giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cariño:chanRoblesvirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It
is not supposed to be consumed at the moment still under field trial, so it is not supposed to
be eaten at the moment. It has not been released for food nor for feed and so in the context
of a confined field test, it has supposed to have it out in the field in a very controlled
manner and any produce that comes out from that area is supposed to be destroyed or kept
from further safety and analysis only.

Chairperson:chanRoblesvirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to
health?

Dr. Cariño:chanRoblesvirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If
reporting of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been
actually published on relative safety of CrylAcc protein and it is actually considered as an
additional protein and the various reviews can be seen in the OECD Digest of risk
assessments on CrylAcc protein. Alternatively, if you are looking at the possibility of harm
coming from the introduced protein as yet, we have not done a full blown assessment of it
as of the moment. But we look at the protein sequence and with a comparison of its
 56

sequence with other sequences in the data basis to see if it is similar to this amino acid
sequence of other known toxins and, so far, I have actually ... in my affidavit, I have
actually seen personally that it is not closely related to any of the known toxins that are
found into its system.

Chairperson:chanRoblesvirtualLawlibrary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?

Dr. Cariño:chanRoblesvirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify one
point. When any GM material is supposed to be introduced for food and for feed and before
it is actually utilized for life skill production, it goes through several steps. The first step is
actually the "lab", laboratory work and it is actually tested in this clean-houses, rolled-out
confined limited field test and then it goes to butyl abyss of field tests where it is like
generating more and more informations. We are still early on in this pathway, so we are
only in the confined field test and, at the moment, the thing is that it is still being tested.
The focus is on its efficacy after doing a preliminary assessment of the possible pathological
and ecological effect, and that is the pathway that has been recommended by so many
academics as well as scientific institutions as well. And, that has been a tract followed by
almost all the genetically modified crops that is being introduced in the market today, but at
the moment BT Talong is not yet a commodity. It is not yet being evaluated as a
commodity.

Chairperson:chanRoblesvirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?

Dr. Cariño:chanRoblesvirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by
human beings because it has not been introduced as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of
course?

Dr. Cariño:chanRoblesvirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it would
not to be evaluated in a step of the way much like to evaluate any new product that is
coming into the market evaluation, goes on a step-by-step and at least day-to-day basis.

Dr. Davies:chanRoblesvirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to make
a little bit of explanation.

Chairperson:chanRoblesvirtualLawlibrary

Proceed.
 57

Dr. Davies:chanRoblesvirtualLawlibrary

I would like to address "BT" as a compound which is distinct from a plain in "Talong". First
of all, I think of the name BT toxin is very fortunate. It is really a protein. A protein is an
essential constituent of life. It is an essential constituent of our food. In the human body,
and in the body of other animals, this protein is under the same as any other protein in
food. It has no effect on the human body. This has been shown for many, many years,
knowing BT Talong but BT has been a constituent of "maize" in commercial production for
16 years.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by
Americans in corn products and by any other people who in[g]est American maize corn
products x x x. There is not a single case of illness or toxicity or allergenicity that can be or
that has been associated with this protein and, therefore, any food containing this protein
has been declared by authorities in all the countries that was mentioned by my colleagues,
including the European Union and the United States x x x to be as safe as any food derived
from the same plant species not containing this gene. I hope that explains a little bit about
what it is.

Chairperson:chanRoblesvirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that
Monsanto's genetically modified corn is linked to cancer?

Dr. Davies:chanRoblesvirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric
Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work has
been refuted by International committees of scientists...

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the
snake venoms. They are poisons, so whether it is protein or not that is not the question. So
proteins obviously venoms and proteins and enzymes and they are poisons so protein can
be a poison so that is now the point at all to be considered. The second thing is, yeah, low
level toxins long term in[g]estion of this BT toxin in human or in any other animal have not
been tested. So that is true so we do not know direct consumption of this, because notice
have been turned down, that is the objective fact. The third point is about the "American
Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled, how do
you know that? What is its effect? What is its toxicity? And, obviously, there are more than
a hundred of papers showing and published in very good journals. I can give many
references which have shown the detrimental effect of BT Toxin.

xxxx
 58

Chairperson:chanRoblesvirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper that
it should be first determined whether this food product is really safe for eating or not?

Dr. Cariño:chanRoblesvirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex
Alimentarius of the WHO, the thing that you do at this early stage of development is to
compare the sequence of the protein that is being introduced with published sequence of
allergens, as well as toxicants and toxins. So that has been done. Then you have to look for
instability under heat conditions because there is seldom do we heat grow eggplants, so is it
stable under heating. Is it stable in the presence of digestive juices? And, if the answer is
"yes", there is at least fair certainty, a fair assurance that it is likely to be safe but then you
start thinking of what other component not present in the product, does this. For example,
any product that we consume today has something that is bad for you, otherwise, you will
not see it right now. Otherwise all the different herbivores will be eating it up, right? It will
be extinct if it does not have anything to protect itself and, so, the thing is one, to quantify
how much of that has changed when you lead the genetic modification. So "Talong" has
been known to have Solanine and glycoalkaloids whose level well have to quantify. We have
not done that yet. They have not submitted the data for that and this as secondary
metabolize whose relative concentration will change depending on the environment to which
you actually place the system.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton.
You known that BT Cotton was introduced in India through the back door black market
entry. During the field trial, some of those seeds were taken out and given to the farmers
for commercial cultivation to black market. Monsanto goes well, Monsanto's BT Cotton, like
Monsanto, did not sue now apparently sue the company and they compelled the
government that farmers wanted those things and there was high ... how they pressurized
the government. Now, in case of BT cotton is one thing, but BT Eggplant is completely a
different thing. That is why [the] Supreme Court in India has taken a very strong stand and,
now, the parliamentary committee in India. The Supreme Court has also taken steps stand
with the field trial. The first thing in field trial we had to see that whether there is a definite
need of this kind of intervention, because the eggplant is a very common vegetable in this
part of the world. There are so many hundreds of varieties here, these are the origins of
these varieties of this kind of vegetable. It is cheap. It is available everyday. So why you go
on changing if there is no crisis in cultivating the eggplants at present. Therefore, when you
give it to this patented seeds technology, its prices will increase, lot of restrictions had to be
deal. So, who will consume this high price eggplant. Many will be exported, that was why
the proponents are looking into it. But, basically, that is the thing that in case of BT Brinjal,
neighbor partisan is being given. There is a moratorium in India from the Supreme Court
and from the government side on field trial of BT Brinjal. Now, if x x x the BT Eggplant is
being taken to the Philippines, we guess, to get in as a bypass, and who will guarantee that
it will not go to the farmers?

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the
 59

effect of the planting .... of the existence of the genetically modified organism, for example,
on insects, on the soil, on the air? And then I was thinking, does this have this particular
protein that result[s] due to the genetic modification? Is it ... how is it expelled, for example
how does it go into the environment? Or, on the other hand, how does it go inside and out
of human system so that does it disintegrate or is it just there forever? I am very curious,
sir. You have to educate me.

Dr. Davies:chanRoblesvirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein
produced by each cell will be this BT protein. It does not get into the environment in
general. A very small amount might be in the pollen or in the leaves that fall to the ground
but it has been shown to be broken down in the soil by organisms so it will not exist in the
environment. The only way that it is going to get into animals or insects is if they eat the
fruit and this is what an insect that the "talong" fruit and shoot borer will be trying to. But, if
it eats it, it reacts with its intestine so that they become toxic to the caterpillar but this is
very specific to the digestive system of the caterpillar. It does not affect bees. It does not
affect animals. It does not affect humans.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific
receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of
these insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and
the beetles but it will only affect if they try to eat the plant. Now, you are asking us if what
is the effect on the environment. x x x I would like to cite x x x a recent paper published in
the journal "Nature" x x x the most prestigious scientific journal in the world, x x x
published in "Nature" in June this year and this is the result of a study of "insects"
in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these
scientists revolt that they show a marked increase in the abundance of three types of
generalist arthropod predators (ladywings, lacewings and spiders) and a decrease in
abundance of aphid pests associated with widespread adoption of Bt cotton. And they are
referring to China and they conclude that such crops, x x x BT crops, can promote beneficial
control services in agricultural landscapes. And, it also showed that these effects extend
beyond the field. So, essentially x x x they found that there were more insects than in
conventionally grown cotton and the insect diversity was greater surrounded than being
detrimental to an agriculture ecosystem such BT cotton falls beneficial.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was
another news article, "Battlefield". One stream ecologist in United States itself, in a
university, she has studied the effect of growing BT Corn in the field and what is the effect
on the stream ecology, the west water, what is happening to other insects, insects in which
it is getting that BT toxin will not go. Yes, she has found that stream ecology...

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago
 60

in Illinois published that paper, published that article in PNAS or Proceedings of the National
Academy of Sciences, a prestigious journal? Now, they have to desert her. She was abused,
so her file was taken out. So people started e-mailing, threatening her. So "Nature" has to
publish that. How dirty the field has become so they entitled it "Battelfield." If anybody
produces any evidence that BT Toxin or GM Technology is doing any harm to the
environment then it will be battered by the entire English lobby so there is worst the
situation. But National Academy of Sciences in United States has taken a strong decision
and, in last year, there were six publications that published where strong evidences are
being produced about the environmental and ecological damage cause[d] by this
technology. So, that is the case.

Dr. Davies:chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang:chanRoblesvirtualLawlibrary

I think Filipinos should be able to talk also here.

Chairperson:chanRoblesvirtualLawlibrary

Can we give a chance to Dr. Malayang?

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops, not
necessarily the intricacies of the science involved in genetic modification per se which, I
think our international friends, would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or

produced from the most robust sciences, a technology could fail to be as useful as it was
intended or its use lead to an [unintended harm to humans and the environment. This is so
because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the
best technology did not necessarily translate to absolute safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to
set up a plant to take advantage of a large pesticide market in India to help the country's
farmers led to a massive and deadly safety failure.

The Third example is the green revolution, x x x involves, however, the wide [use] of
synthetic chemicals for fertilizer and pesticides that were [at] the time hailed as wonder
technologies. Many scientists in the world at that time argued for their wider use but they
later turned out to harm people, soils and water. They prove good then bad, so bad that
scientists today are using their ill effects as justification for adopting alternative
technologies to get us out of the synthetic chemical regime in agriculture.

And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the
vetting processes using rigid safety and risk assessment methods, they still could cause side
effects entirely undesired and many of which can cause chronic or acute threats to human
 61

life. This includes the use of "DDT" that was used to control lice among soldiers after the II
World War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the
place and context, the particular place and context of the introduction of BT crops like BT
talong. x x x the Philippines is among the world's biologically rich countries. x x x So, many
of our insects are not even fully known. We do not know how they all behave to influence
the transfer of genetic materials from plants to other plants. We do not fully know what we
do not know about the intricate interactions between plants and between insects and other
living things that define the universe of our healthful and balanced ecology. The universe of
our healthful and balanced ecology certainly go beyond specific crops. I am concerned that,
absent a full as against partial understanding of the intricate web of genetic flows and
interactions among plants, animals and other living things in our wet and tropical
ecosystems, it will require extraordinary care to tamper with any one element of this swirl
of interrelationships. This is notwithstanding the seeming preponderance of evidence of
safety in other countries and environment that are certainly not the same as ours. x x x we
must be extra careful because the effects might be irreversible. Introducing a genetically
modified plant x x x could cause a string of changes across many plants that, like the green
revolution or in the case of medicine and the two other cases cited above, could turn out
and only to be realized much later to be harmful to humans and the environment more than
they were intended to be useful. x x x let us ensure that we adopt in the country a biosafety
vetting protocol that is: (1) sensitive to our high biodiversity this is a particular condition in
the Philippines; and (2) tested for error levels that are acceptable to or which can be
tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests
that we will be doing is a test process acceptable to all as well rather than merely concocted
or designed by just a few people x x x must be a product of wider citizens' participation and
reflect both scientific and traditional knowledge and cultural sensitivity of our people. It is in
the NBF after all, x x x 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
public 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 wider democratic decision making beyond
the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x
prudence requires that maximum efforts be exerted to ensure its safety beyond the
parameters of science and into the sphere of public policy. For to fail in doing so what might
be highly anticipated to be beneficial may in some twist of failure or precaution and
prudence and failure for due diligence to establish the safety of Bt Talong beyond
reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly do
not want to do. I submit these views to the Court.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market in the
Philippines and you see nice Talong, it has probably been treated with various insecticides.
So, there has been insecticide spray on your tips in your crops which are going to be harm
on your farmers, your farmer's children, the insect populations and also dangerous to the
consumers as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be
beneficial to the insects and the environment and also has been shown not to be toxic in
food. Therefore, we are changing a highly toxic chemical application for a much more
benign modern technique that is beneficial to the environment and beneficial to the
consumers. That is my comment with the views just made by my Filipino colleagues, your
 62

Honors.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone
population or a reduction of that population it would still be both not beneficial to the
healthful and balanced ecological health of the ecosystem. So to say that because the
population of insects are exploded and the diversity of insects exploded as a result of this
particular intervention is not necessarily good. That is my first point. The second one, you
mentioned x x x the "talong" is laden with pesticide. The same pesticide were advised by
scientists from the USAID before for us to use in this country because this is how to expand
our production of food. This was part of the green revolution, the systemic use of pesticides
and fertilizer. Now, of course, they were misused, I can guarantee that but, again, if that be
the case, in the case of pesticide why can it not be in the case of BT that it can also be
misused? x x x we are talking here not of the science or of the technology but on the policy
aspect of the adoption of the technology. As I said, I am talking about the bakery not of a
baked-bread.

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of
the use of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the
Philippines, we have a very strict highly monitored field testing and I think Dr. Malayang
knows about that because he was one of those who prepared the guidelines for the field
testing. So that is not going to happen, it is a very strict regulatory system. We are known
for that, actually, and...

xxxx

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

No, no. It does not happen because we have a risk management plan x x x.

xxxx

Dr. Halos:chanRoblesvirtualLawlibrary

x x x As far as do we know what is happening after we have given approval, yes, we are
monitoring. We are monitoring as far as BT corn is concerned. We are monitoring,
continuously monitoring, not only for the beneficial insects but also the effects that is
continuing, we are also continuing to monitor the weeds, weed population. In weed we
decide to spray...

Dr. Malayang:chanRoblesvirtualLawlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos:chanRoblesvirtualLawlibrary

No we have to know what is happening.

Dr. Malayang:chanRoblesvirtualLawlibrary
 63

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why
monitor?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, we are going to give you the data for that because you keep on asking, you know, you
asked for a long term and we are going to give you that complete data.

xxxx

Dr. Medina:chanRoblesvirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies
mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all
proteins are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds
of protein x x x it is a misleading generalization. Secondly, I would like to say also that,
when you say that BT crops is beneficial to insect population but, how about humans? But,
let me tell and inform the Honorable Justices also that, in agriculture, there can be, the
pests are there to reduce the yield. There are also diseases so, that this Bt is only
controlling one kind of pest and, in my monitoring of BT corn as an example to this 2 years
after the commercialization in 2003, at first planting in 2003, the corn is attacked by about
a dozen insect pests and six major diseases. The Bt corn was attacked a "stem rot", a
fungal disease. And, in this case in eggplant, there are many fungal diseases, "phomopsis" x
x x So in that case it is not field safe that you will not be using pesticide anymore
with BT eggplant. When you use the BTeggplant, assuming that there is no more insect
pests x x x There are many other methods of control and, therefore, do not assume that
you do not use pesticide therefore, BT is the only solution. That is also a risky and wrong
generalization or statement, x x x Dr. Halos x x x says that field tests are safe. I intend to
disagree with that. Safe to what? Especially to contamination. If I may use this picture of
the field testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter
of something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that,
the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that
case, they can easily get in and get out and when they settle into the flowers and snip
nectars and the fall of the pollen then they can bring out the pollen to contaminate outside
that. In fact, even assuming that the fence is very small in size of the mess, the holes, still
the insects can fly above that fence because the fence is only about 5 feet in height. So, in
that case it is not safe. Some arguments say that "well the pollen will be dead" but,
according to this technical manual of the Training Workshop On Data Collection for
Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant
Eggplant, that is the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is
one of the main researchers the datas, here say according to "Rasco", cited by Dr. Narciso,
is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees centigrade, with
a relative humidity of 50 to 55. x x x Meaning to say, that pollen can survive. This can fly as
fast as something like 60 kilometers per hours so it just take may be 3 minutes and it can
travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their normal
foraging.

xxxx

Dr. Medina:chanRoblesvirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they
conclude that it is safe when they have not monitored any potential pollen flow by insect
 64

mitigated or insect mediated flow pollen? So, in that case, the conclusion or the statement
is really beyond what their data may be is if their data is about safety.

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

xxxx

x x x I hope that we will be able to look at the experimental design and you will see that all
the things are properly addressed, our risk assessment was done step by step, x x x I beg
to disagree with my friend Dr. Medina because it is becoming ... we are confusing 2 things.
We are not referring to contained trial. We are referring to confined field trial and in the
design of this particular experiment, you have your BT eggplant, your non-BT eggplant so
that you can compare the performance with the 2 crops. And, on design, you have 5 rows of
plant BTeggplants that will serve as a pollen trap. When we say pollen trap is that it just
open the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and
then, after that, you have a space of 200 meters surrounding the field which is the isolation
distance. That means no eggplant should be present in that particular distance because that
is the isolation distance that is found to be safe, x x x we know that Bt protein is very
specific x x x effective only against caterpillar x x x if they are eaten by other organism,
they are not affected because it is very specific. The gut of the larva is very alkaline while
the gut of other insects is likely acidic and, in that case, it does not have any harmful effect,
x x x So another thing is we are saying that it seems to be ridiculous that you are saying
that honeybee is going to fly from the fence and the size were even indicated. I would like
to indicate that, that is not the purpose of the fence. It is not to contain the insects. It is to
prevent vandalism which is quite, unfortunately, being done by other groups who are
against the technology. x x x We should be able to have our own space, our own time,
considering the given regulation. Follow them. But our experimentation not be destroyed
because it is only then that we will be able to get the valuable data that is needed for an
informed decision. Without that we will not be able to proceed and I hope we can discuss
this based on the merits of the field trial, not from any other concern because the writ
of kalikasan is about the effect of field trial in the environment.

Dr. Medina:chanRoblesvirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He
said that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar,
some species, if you can read by chemical and by physical research communications this is
Volume 271, pages 54-58, authored by Vasquez Pardonnet, published in 2000, publication
under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small
intestine. Small intestine ay mammal po iyan so, meaning, it is a proxy animal for safety
[testing] to humans because we are also mammals so, the mice are usually the mammals
12 years ago, the data has been already there that there is binding site, therefore it is not
only specific to insects but also to mammals. x x x he is saying that, by working on the
natural BT is the same as the transformed BT it is not true because the natural BT has 1155
"base pairs" of nucleic acids. And the transformed GM Crop contains a fragment of
that BT gene which is only half of that. And the mechanism, by the way, x x x the natural
toxin is broken into smaller pieces inside the intestine of the insects because it is alkaline in
terms of its system "ph" and for humans acidic. So it does not work. But, because the
transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein,
it is already activated and, in that case, that is the reason why there is a test and
immediate effect to non-insect, meaning, to mammal, so that is the explanation of scientist
 65

doing studies on that aspect.

x x xx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear
vision; x x x I will give some example. Yes, BTtoxin, was it really good biological control
agent? But it is a completely different gene when you produce it into an edible plant inside
genetically. So, these are 2 different things. What will happen? We are scared that the
efficacy, the use of BT toxin as a spray, as biological control agent, will be vanished because
now there will be resistance against those in BT toxin, x x x resistance is coming very
quickly, just like antibiotic resistance, x x x The second thing, I have asked many plant
biologists this simple question, simple honest question. Do you know any plant that can kill
a bee or a moth? No! There is no way, why? Because those are the "pollinators". Plant
never kills a bee or a moth that goes against nature, x x x So, nature, for thousands of
years, farmers help select or adopt edible non-toxic plants. And, now, with the high science
we are converting them, non-toxic edible plant into a toxic plant. So not only toxic for the
human, for the root microorganisms, x x x Those eggplants are not only for humans to
consume. So human effect, we do not know but what will be the effect? Who will mind the
effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while
growing BT cotton x x x the leaves and other they use to attract animals to eat. x x x they
found suddenly one thing that the BT cotton plants are not touched by those buffalos, those
cows, those [boars], but they can distinguish which is BT and non-BT. x x x and when their
animals started dying in some cases, they always blame, it is this animal which has eaten
that BT? x x x these are [going] against nature. Only few edible seed plants are there and
we are converting one safest plant into a poisonous and toxic plant and what is the effect on
the root microorganisms on the degrading animals and other? We do not know. That hard
thing is the tunnel vision, the confined field trial, x x x why implement this confined field
trial? Is this safe? Why do they have to do this x x x these things do good for a normal
hybrid that is something but for the gene concept we cannot follow the same separation
rules, same rules? So those are used, those separation distincts, those parameters are used
not for the gene. So, which is the safe field trial protocol for the gene plants? We do not
know. So there goes against [the] writ of kalikasan.

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

How much is the increase in crop yield? x x x

Dr. Halos:chanRoblesvirtualLawlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is actually
taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.

xxxx

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of
corn so, you mean to say that corn production in the country has gone up and, because of
that, you are saying that 24% and the income of farmers had gone up as well? Do you
 66

mean to say that the price of com had also gone up as a result of the increase in the volume
of com production in the Philippines?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, the price is dictated by the market.

Dr.Malayang:chanRoblesvirtualLawlibrary

That is precisely the point.

Dr. Halos:chanRoblesvirtualLawlibrary

Yes.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a
technology such as GM Com or GM Talong affecting market there is also not only the
regulatory but economic regime that is attendant to it that makes adjustments. So it may
not be harmful to humans because we will not come out when we eat it but it might be
harmful to the economy of a particular agricultural crop. x x x

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and
those are independent studies. And, precisely, this is to determine the effect on natural
enemies and the different insects x x x and some of those are already available, x x x you
will be able to protect the environment only if you know how to have a proper information in
making the decision. So, again, I am saying that, in field trial, you will be generating a lot of
information that you will be able to use in making a wise decision and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty
regarding butterflies and moths. Because they are not affected by BT because they are
adult insects. The only one that is affected are actually the larva, not even the pupa. So, we
would like that to be clear because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a continuous breeding program. So, it is a
natural mechanism by an organism as mode of ad[a]potation. x x x are you telling us that
we are going to stop our breeding work because, anyway, they are going to develop
resistance. I think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In
toxicology, you can have the effect if you have, for example, the insects, you have a
receptor. The toxin will bind into the receptor. Toxin has to fall and then the toxin has re-
insert into the membrane. If you eliminate one of those steps you do not have any toxicity.
So, that means binding by itself will not be toxicity. It is a wrong impression that, since you
have binding, there will be toxicity. It is simply wrong because, the actuality that it should
bind, it should fall then, it should insert, and it is a very common x x x. To say that binding
is equivalent to toxicity is simply not true.
 67

The other one is natural BT toxin and activated toxin. When you were saying protoxin,
protoxin is basically the entire crystal protein. If it is already inside the gut of the insect it
has to be clipped by the purchase coming from the gut and you have it activated and you
have the toxin. So what you have in plant is already the toxin since the anther and the
toxin, and the toxin in microorganisms, the anther which are already clipped by a purchase
are the same. So, to say that they are different is actually wrong. You are comparing
protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics

and that is why you have to characterize them and you have to separate the protein that
are causing problem and protein that are not causing problem. That is why you have
allergen and, as explained by Dr. Cariño, you have to check the sequence. x x x

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency
of the production not that much into the safety. You have to look into it carefully that how
much will get this efficacy, not the safety to that extent x x x. Second point x x x there is
this already mentioned that European Union there is no consensus, x x x they have
published and submitted the systemic list of genetically modified crop need for new
approach in risk assessment. So that is what is needed. There is another article, how does
scientific risk assessment of GM crop fit within wider risk analysis, x x x This is genetic
engineering. The production process is very precise in selecting the inserted gene but not in
its enhancement, x x x they are never looking into it. The second thing, they do not look
into that from the laboratory condition to what is the real life situation. They do not take
that into account x x x so this assessment protocol has to be modified or changed, x x x in
the IAASTD or International Assessment of Agricultural Knowledge, Science and Technology
for Development. There is a supreme body, so many nations, so many experts, scientists x
x x. Only sustainable agricultural practice and that is the only alternative. This GM
technology is not going to help them x x x In my country also, when the BT toxin evaluation
was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody
will be benefitted by that. So, we started questioning, x x x "What are the actual economic
analysis indeed? Just show me". Then, they come up with an answer. Scale neutral means
that even small farmers initially wanted BT cotton and big farmers also wanted BT cotton.
They are partisans. It is not the economic benefit because, economically, it is not going to
be beneficial so it is very much scale dependent its benefit. So, only the big farmers, large
farmers and x x x the vegetable field you never can give separation. Chances you never can
give refuge. The 1/5 of the land given for growing pests so that you cannot do. So it cannot
help technology. They have developed this technology for partisan large scale farming to
completely automated for BT technology where no label will be there. But the failed
experiments, the contracts whose patent will be over within 2-3 years, they are testing
them in our country. So that is the bottom line.

xxxx

Chairperson:chanRoblesvirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of the
 68

field trial of BT Talong by the respondents has violated or has threatened to violate the right
of the people to a balanced and healthful ecology. Is there absolute certainty that it has not
so violated such right. Because that is the requirement for applying or not applying the
precautionary principle, x x x

Dr. Cariño:chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson:chanRoblesvirtualLawlibrary

But there is no absolute certainty?

Dr. Cariño:chanRoblesvirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures and
they did not show us, you know, there is no evidence of harm that has been shown to this
Court. There is no evidence at all.

Chairperson:chanRoblesvirtualLawlibrary

That is your opinion.95ChanRoblesVirtualawlibrary

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points
of contention between the expert witnesses, i.e., the safety of Bt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of
scientific studies conducted from the time Bt technology was deployed in crop farming.
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 the developed
countries (USA, EU, Japan, China, Australia, etc.).

Before proceeding to the current state of global GMO research, we briefly address the
strong objection of petitioners to the CA's reliance on the research conducted by Prof.
Seralini, the French scientist whose study was published in September 2012 in Food and
Chemical Toxicology, which was criticized as a "controversial feeding study." Seralini studied
rats consuming Monsanto's Roundup Ready treated corn for two years (using the same kind
of rats prone to tumors used by Monsanto in obtaining original approval for its product and
the same methodologies, but did it for 2 years which is longer than the 90-day experiment
period done by Monsanto). The rats formed massive cancerous tumors. All three test groups
of rats, with 10 rats in each group, died more frequently, suffered from liver problems, and
had a pronounced number of tumors specifically with grotesque mammary and testicular
tumors.96

Seralini's findings created an uproar and the study was expunged from the publication in
November 2013 even though the Editor-in-Chief found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by his work and further conducted similar
laboratory experiments. Critics faulted the experimental method, saying the number of rats
studied was too small and their diet was skewed when compared with their natural food
intake. But over 300 scientists condemned the retraction, they said that the retraction
lacked scientific integrity and requested to reinstate the study. Last June 2014, Seralini's
controversial study was republished and has passed a third peer review arranged by the
journal that is republishing the study, Environmental Sciences Europe. The republished
version contains extra material addressing criticisms of the original publication and the raw
 69

data underlying the study's findings, and accompanied by a separate commentary by Prof.
Seralini's team describing the lobbying efforts of GMO crop supporters to force the editor of
the Food and Chemical Toxicology to retract the original publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing
relevant information for effective regulation of GMOs. There can be no argument that
"[s]ince scientific advice plays a key role in GMO regulations, scientists have a responsibility
to address and communicate uncertainty to policy makers and the public."98

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not

diminished by extensive use at present of GM technology in agriculture. The global area of
GM crops has reached over 175 million hectares in 2013, more than a hundredfold increase
from 1.7 million hectares in 1996.99 However, the worldwide debate on safety issues
involving GM foods continues.

It has been pointed out that the crux of the controversy surrounding GMOs lies in the very
nature of the technology itself. The process of combining inter-species genes, which is called
recombinant DNA technology, does not have the checks and balances that are imposed by
nature in traditional breeding. Because of this there is a risk of genetic instability. This
means that no one can make any accurate predictions about the long-term effects of GMOs
on human beings and the environment. Extensive testing in this regard is either very
expensive or impractical, and there is still a great deal about the process that scientists do
not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic Co-
operation and Development (OECD) and the United Nations World Health Organization
(WHO) and Food and Agricultural Organization (FAO). The OECD's group of experts on
biosafety recommended conducting the safety assessment of a GM food on case-by-case
basis through comparison to an existing food with a long history of safe use. Thus, the
concept of substantial equivalence was developed that is widely used by national and
international agencies, including the US Food and Drug Administration (FDA), the WHO,
OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is
found to be substantially equivalent to an existing food or food component, it can be treated
in the same manner with respect to safety (i.e., the food or food component can be
concluded to be as safe as the conventional food or food component)." 102 The safety
assessment of a genetically modified food is directed by the results of a comparison
between the genetically modified food and its conventional counterpart. It follows a
stepwise process aided by a series of structured questions. Factors taken into account in the
safety assessment include:
• identity;

• source;

• composition;

• effects of processing/cooking;

• transformation process;
 70

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

• protein expression product of the novel DNA:

• effects on function;

• potential toxicity;

• potential allergenicity;
• possible secondary effects from gene expression or the disruption of the host DNA or
metabolic pathways, including composition of critical macro, micro-nutrients, anti-nutrients,
endogenous toxicants, allergens, and physiologically active substances; and,

• potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from
genetically modified plants.104 However, the concept of substantial equivalence as the
starting point of risk assessment was criticized for being "unscientific and arbitrary" and
"intentionally vague and ill-defined to be as flexible, malleable, and open to interpretation
as possible." It is likewise argued that "comparisons are designed to conceal significant
changes resulting from genetic modifications," "the principle is weak and misleading even
when it does not apply, effectively giving producers carte blanche", and that there is
insufficiency of background information for assessing substantial equivalence. A paper
presented at a WHO workshop pointed out that the main difficulty associated with the
biosafety assessment of transgenic crops is the unpredictable nature of transformation. This
unpredictability raises the concern that transgenic plants will behave in an inconsistent
manner when grown commercially.105

The method of testing GM foods was further described as inadequate, as currently the
testing procedures consist almost exclusively of specific chemical and biochemical analytical
procedures designed to quantitate a specific nutrient or a specific toxin or allergen. It was
noted that in actual practice, the investigator compares only selected characteristics of the
genetically engineered food to those of its non-genetically engineered counterpart. These
testing schemes are viewed as completely incapable of detecting unsuspected or
unanticipated health risks that are generated by the process of genetic engineering itself.
Hence, clinical tests are recommended because only such tests have the broad specificity
and relevance to human physiology needed to detect the wide range of allergens and toxins
that might result from unexpected side-effects of the genetic engineering process. 106

In another review article, it was pointed out that since a genetic modification is aimed at
introducing new traits into organisms, the result will always be a different composition of
genes and proteins. The most reasonable interpretation therefore is that a food derived
from a GMO is considered substantially equivalent to its traditional counterpart if the genetic
modification has not resulted in intended or unintended alterations in the composition of
relevant nutrients and inherent toxicants of the organism, and that the new genes and
proteins have no adverse impact on the dietary value of the food and do not therefore pose
any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to
analyze the safety of a new food, and hence in the testing of new foods, the latest scientific
methods have to be used. All conceivable efforts to protect consumers from health risks
should thus be made, and at the same time, consumers should be adequately informed
about the real extent of risks and hazards.107
 71

The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their respective positions as
flawed or unscientific. Both the agri-business industry, and groups opposed to GMOs
including the organic farming industry, had utilized enormous resources and funds for
lobbying and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked

reduction in the use of harmful chemical pesticides.108 The resulting increase in crop yields
grown on relatively small parcels of land is also regarded as a solution to the problem of
feeding a fast growing world population. Proponents of GM biotechnology insist that GM
foods are safe to humans and the environment based on scientific studies. On the other
hand, anti-GM activists disseminate adverse results of recent studies confirming the health
and environmental hazards of genetically engineered crop farming. Also, some countries
have maintained a firm stance against genetically engineered crops or GM foods, such as
France and Austria. Over the years, however, accumulated evidence of the dangers of
GMOs, as well as unrealized socio-economic benefits, has been increasingly recognized by
the scientific community.

That GE farming increases crop yield has been debunked by new studies proving the
contrary. In the article, "GM Crops Do Not Increase Yield Potential," the Institute for
Responsible Technology cited reports from actual field studies in different countries
revealing downward figures for Bt crops, as summarized below:
• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.

• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a
decade - with the disruptive effect of the GM transformation process accounting for
approximately half the drop in yield.

• Based on a comprehensive evaluation of yield since the introduction of commercial GM

crops, the International Assessment of Agricultural Knowledge, Science and Technology
(IAASTD) noted that GM crop yields were "highly variable" and in some cases, "yields
declined".

• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-
reviewed studies conducted by academic scientists using adequate controls, concluded that
genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has only marginally improved yields. Traditional
breeding outperforms genetic engineering hands down.

• In developing countries, crop failure can have severe consequences as illustrated in India,
where a large number of cotton farmers, unable to pay back high interest loans, have
committed suicide. Several investigations have implicated the unreliable performance
of Bt cotton as a major contributor.

• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced
pest problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80%
to 22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while
those remaining had to be subsidized by the government. Similarly in the US, Bt cotton
yields are not necessarily consistent or more profitable.109ChanRoblesVirtualawlibrary
 72

GM technology is thus seen as a failure in terms of addressing food security; rather, it

supports corporate control and impedes common persons' access to adequate food. The root
cause of hunger is not a lack of food, GM critics say, but a lack of access to food. The poor
lack money to buy food and lack of land on which to grow it. It is essential to follow
sustainable traditional farming practices that keeps food production in the hands of small-
scale farmers, thereby reducing corporate control.110

As regards the existing uncertainties of potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term
Effects) study of 2009,111 made for the European Commission, analyzed more than 700
scientific publications from all over the world about GMOs and their potential effects on
environment including biodiversity, and received contributions to online surveys from 100 to
167 invited environmental experts. This study declared the following uncertainties:
• increased fitness of GM plants;

• outbreeding depression after hybridization with wild relatives;

• outcrossing between related species and the fate of a transferred GM trait;

• altered flower phenology;

• altered fecundity, increasing seed (gene) flow;

• increased frequency of horizontal gene flow;

• resistance development of pests;

• effects on non-target organisms;

• effects on non-target organisms due to altered nutritional composition of the GM plant;

• effects on non-target organisms due to accumulation of toxic compounds;

• effects on rhizo sphere microbiota;

• effects on symbiotic non-target organisms;

• changes in soil functions caused by GM traits;

• effects on biological control;

• altered use of agrochemicals;

• indirect changes in susceptibility of crops against pathogens;

• adverse effects on agro-biodiversity;

• indirect effects in fertilizer use;

• potential changes in landscape structure;

• increased production of greenhouse gases;

 73

• increased mineral nutrient erosion and fertilizer leaching;

• altered chemical attributes of soil fraction;

• emerging of stacked events;

• the necessity of regional differentiation of risk assessments.112ChanRoblesVirtualawlibrary

A critical observation was made on the argument that there is not enough evidence to reject
the hypothesis that GMO and GM food is safe. The fact emphasized was that experiments
designed to clarify potential adverse effects on health or the environment are nearly absent
in peer-reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic
knowledge crucial to risk assessments have become apparent. The present uncertainty
warrants further research and it has been demonstrated that there is a risk of bias relying
on hypotheses that dominate mainstream science. There is therefore a need for
independent research that is without prejudice and unbiased by economic and professional
interests.113 In another article it was noted that the clinical trials carried out to ensure that
negative externalities do not affect humans and the environment are conducted by the
same private firms that created the products, raising conflict of interest concerns. 114

While existing literature on health effects of GM foods indicates that they are generally safe,
and similar conclusions have been drawn by government agencies and scientific
organizations such as FAO/WHO and Society of Toxicology, a growing number of
independent scientists have spoken strongly against such generalizations from limited
research mostly sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists
from 82 countries expressed that they are extremely concerned about the hazards of GMOs
to biodiversity, food safety, human and animal health, and demanded a moratorium on
environmental releases in accordance with the precautionary principle. They are opposed to
GM crops that will intensify corporate monopoly, exacerbate inequality and prevent the
essential shift to sustainable agriculture that can provide food security and health around
the world, and called a ban on patents of life forms and living processes which threaten food
security, sanction biopiracy of indigenous knowledge and genetic resources and violate basic
human rights and dignity.115

On May 10, 2003, dozens of prominent scientists from various disciplines banded together
as an Independent Science Panel on GM at a public conference in London. On June 15,
2003, they released a Final Report116 as their contribution to the National GM Debate in UK.
In a summary117 of the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"
 74

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the
literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete
licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were
attributed to the transgenic process or the transgenic construct, and may hence be general
to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-
target insects, and some are potent immunogens and allergens for humans and other
mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including
cytokines known to suppress the immune system, or linked to dementia, neurotoxicity and
mood and cognitive side effects; vaccines and viral sequences such as the 'spike' protein
gene of the pig coronavirus, in the same family as the SARS virus linked to the current
epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere with the
immune system and recombine with viruses and bacteria to generate new and unpredictable
pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of
 75

preventing the spread of transgenes, actually spread both male sterility and herbicide
tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that
currently account for 75% of all GM crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and

haematological toxicities, and birth defects in humans and mammals; also toxic to
butterflies and a number of beneficial insects, to larvae of clams and oysters, Daphniaand
some freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and
fungi, especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use
levels; glyphosate exposure nearly doubled the risk of late spontaneous abortion, and
children born to users of glyphosate had elevated neurobehavioral defects; glyphosate
retards development of the foetal skeleton in laboratory rats, inhibits the synthesis of
steroids, and is genotoxic in mammals, fish and frogs; field dose exposure of earthworms
caused at least 50 percent mortality and significant intestinal damage among surviving
worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction
that may be linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal gene transfer and recombination, the main
route to creating viruses and bacteria that cause disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of

minutes in the laboratory millions of recombinant viruses that have never existed in billions
of years of evolution

o Disease-causing viruses and bacteria and their genetic material are the predominant
materials and tools of genetic engineering, as much as for the intentional creation of bio-
weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut
of human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals
but also for human beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

 76

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be
especially unstable and prone to horizontal gene transfer and recombination, with all the
attendant hazards: gene mutations due to random insertion, cancer, re-activation of
dormant viruses and generation of new viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence,

especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up,
including investigations on whether the CaMV 35S promoter is responsible for the 'growth-
factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating
problems on the farm. Transgenic contamination is now widely acknowledged to
be unavoidable, and hence there can be no co-existence of GM and non-GM
agriculture. Most important of all, GM crops have not been proven safe. On the
contrary, sufficient evidence has emerged to raise serious safety concerns, that if
ignored could result in irreversible damage to health and the environment. GM
crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in
all aspects relevant to health and the environment. In addition, they bring food security and
social and cultural well being to local communities everywhere. There is an urgent need for
a comprehensive global shift to all forms of sustainable agriculture.118

In 2008, a Global Report119 was released by the International Assessment of Agricultural

Knowledge, Science and Technology for Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of a consultative process involving 900
participants and 110 countries from all over the world. This global initiative assessed
agricultural knowledge, science and technology (AKST) in relation to meeting development
and sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health
and rural livelihoods; and (3) facilitating social and environmental sustainability. The report
concluded that a radical transformation of the world's food and farming systems - especially
the policies and institutions that affect them - is necessary if we are to overcome converging
economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have
primarily benefited the better-resourced groups in society and transnational corporations,
rather than the most vulnerable ones. In general, the IAASTD found little evidence to
support a conclusion that modern biotechnologies are well suited to meeting the needs of
small-scale and subsistence farmers, particularly under the increasingly unpredictable
environmental and economic conditions tha they face. 120

More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM
foods and crops.121 The statement122is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific,
legal, social and safety assessment aspects of genetically modified organisms (GMOs), we
strongly reject claims by GM seed developers and some scientists, commentators, and
 77

journalists that there is a "scientific consensus" on GMO safety and that the debate on this
topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO safety
does not exist. The claim that it does exist is misleading and misrepresents the currently
available scientific evidence and the broad diversity of opinion among scientists on this
issue. Moreover, the claim encourages a climate of complacency that could lead to a lack of
regulatory and scientific rigour and appropriate caution, potentially endangering the health
of humans, animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the
need for further independent scientific inquiry and informed public discussion on GM product
safety and urge GM proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive
review of animal feeding studies of GM crops found "An equilibrium in the number [of]
research groups suggesting, on the basis of their studies, that a number of varieties of GM
products (mainly maize and soybeans) are as safe and nutritious as the respective
conventional non-GM plant, and those raising still serious concerns". The review also found
that most studies concluding that GM foods were as safe and nutritious as those obtained by
conventional breeding were "performed by biotechnology companies or associates, which
are also responsible [for] commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are
safe included studies that found significant differences in the GM-fed animals. While the
review authors dismissed these findings as not biologically significant, the interpretation of
these differences is the subject of continuing scientific debate and no consensus exists on
the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve
animal feeding studies in which one group of animals is fed GM food and another group is
fed an equivalent non-GM diet. Independent studies of this type are rare, but when such
studies have been performed, some have revealed toxic effects or signs of toxicity in the
GM-fed animals. The concerns raised by these studies have not been followed up by
targeted research that could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the
recent research calls of the European Union and the French government to investigate the
long-term health impacts of GM food consumption in the light of uncertainties raised by
animal feeding studies. These official calls imply recognition of the inadequacy of the
relevant existing scientific research protocols. They call into question the claim that existing
research can be deemed conclusive and the scientific debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM food

consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to
 78

establish whether there are any health effects associated with GM food consumption. As GM
foods are not labelled in North America, a major producer and consumer of GM crops, it is
scientifically impossible to trace, let alone study, patterns of consumption and their impacts.
Therefore, claims that GM foods are safe for human health based on the experience of North
American populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are
exaggerated or inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods
are safe, or that they are no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly
critical of the regulatory system for GM foods and crops in that country. The report declared
that it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous
scientific testing and that the "default prediction" for every GM food should be that the
introduction of a new gene will cause "unanticipated changes" in the expression of other
genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of
these changes identified in the report included the presence of new or unexpected allergens.

A report by the British Medical Association concluded that with regard to the long-term
effects of GM foods on human health and the environment, "many unanswered questions
remain" and that "safety concerns cannot, as yet, be dismissed completely on the basis of
information currently available". The report called for more research, especially on potential
impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM
technology. For example, a statement by the American Medical Association's Council on
Science and Public Health acknowledged "a small potential for adverse events ... due mainly
to horizontal gene transfer, allergenicity, and toxicity" and recommended that the current
voluntary notification procedure practised in the US prior to market release of GM crops be
made mandatory. It should be noted that even a "small potential for adverse events" may
turn out to be significant, given the widespread exposure of human and animal populations
to GM crops.

A statement by the board of directors of the American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed
to represent the view of AAAS members as a whole and was challenged in an open letter by
a group of 21 scientists, including many long-standing members of the AAAS. This episode
underlined the lack of consensus among scientists about GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and
food safety. However, the report based on this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide such evidence, from long-term feeding
studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus
on "the development of safety assessment approaches". Only five published animal feeding
studies are referenced in the SAFOTEST section of the report, which is dedicated to GM food
safety. None of these studies tested a commercialised GM food; none tested the GM food for
 79

long-term effects beyond the subchronic period of 90 days; all found differences in the GM-
fed animals, which in some cases were statistically significant; and none concluded on the
safety of the GM food tested, let alone on the safety of GM foods in general. Therefore the
EU research project provides no evidence for sweeping claims about the safety of any single
GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence of
GM food safety and, in fact, some provide evidence of a lack of safety. For
example:chanRoblesvirtualLawlibrary

• Many of the studies are not toxicological animal feeding studies of the type that can
provide useful information about health effects of GM food consumption. The list includes
animal production studies that examine parameters of interest to the food and agriculture
industry, such as milk yield and weight gain; studies on environmental effects of GM crops;
and analytical studies of the composition or genetic makeup of the crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial
number found toxic effects and signs of toxicity in GM-fed animals compared with controls.
Concerns raised by these studies have not been satisfactorily addressed and the claim that
the body of research shows a consensus over the safety of GM crops and foods is false and
irresponsible.

• Many of the studies were conducted over short periods compared with the animal's total
lifespan and cannot detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet
website as they do not "document the general safety and nutritional wholesomeness of GM
foods and feeds". Rather, some of the studies give serious cause for concern and should be
followed up by more detailed investigations over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-
target organisms and effects of the herbicides used in tandem with herbicide-tolerant GM
crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of
GM crops. A review of environmental risk assessment approaches for GM crops identified
shortcomings in the procedures used and found "no consensus" globally on the
methodologies that should be applied, let alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse
effects on non-target and beneficial organisms - effects that are widely neglected in
regulatory assessments and by some scientific commentators. Resistance to Bt toxins has
emerged in target pests, and problems with secondary (non-target) pests have been noted,
for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual
studies have associated them with increased herbicide use, the rapid spread of herbicide-
 80

resistant weeds, and adverse health effects in human and animal populations exposed to
Roundup, the herbicide used on the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM

crops may be correlated with funding sources. A peer-reviewed survey of the views of 62
life scientists on the environmental risks of GM crops found that funding and disciplinary
training had a significant effect on attitudes. Scientists with industry funding and/or those
trained in molecular biology were very likely to have a positive attitude to GM crops and to
hold that they do not represent any unique risks, while publicly-funded scientists working
independently of GM crop developer companies and/or those trained in ecology were more
likely to hold a "moderately negative" attitude to GM crop safety and to emphasize the
uncertainty and ignorance involved. The review authors concluded, "The strong effects of
training and funding might justify certain institutional changes concerning how we organize
science and how we make public decisions when new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by GM

foods and crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in
2003. The Cartagena Protocol is an international agreement ratified by 166 governments
worldwide that seeks to protect biological diversity from the risks posed by GM technology.
It embodies the Precautionary Principle in that it allows signatory states to take
precautionary measures to protect themselves against threats of damage from GM crops
and foods, even in case of a lack of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for
seven years to develop international guidelines for the assessment of GM foods and crops,
because of concerns about the risks they pose. These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160 nations are members, including major GM crop
producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods,
in that they agree that genetic engineering differs from conventional breeding and that
safety assessments should be required before GM organisms are used in food or released
into the environment.

These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be
happening, without widespread international recognition of the risks posed by GM crops and
foods and the unresolved state of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM
crops and foods that have shown adverse effects on animal health and non-target
organisms, indicated above. Many of these studies have, in fact, fed into the negotiation
and/or implementation processes of the Cartagena Protocol and Codex. We support the
application of the Precautionary Principle with regard to the release and transboundary
movement of GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate that the
totality of scientific research outcomes in the field of GM crop safety is nuanced, complex,
often contradictory or inconclusive, confounded by researchers' choices, assumptions, and
 81

funding sources, and in general, has raised more questions than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human
food and animal feed supply, and whether the identified risks are acceptable or not, are
decisions that involve socioeconomic considerations beyond the scope of a narrow scientific
debate and the currently unresolved biosafety research agendas. These decisions must
therefore involve the broader society. They should, however, be supported by strong
scientific evidence on the long-term safety of GM crops and foods for human and animal
health and the environment, obtained in a manner that is honest, ethical, rigorous,
independent, transparent, and sufficiently diversified to compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our
political analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future
Council put it, "While profitable to the few companies producing them, GMO seeds reinforce
a model of farming that undermines sustainability of cash-poor farmers, who make up most
of the world's hungry. GMO seeds continue farmers' dependency on purchased seed and
chemical inputs. The most dramatic impact of such dependency is in India, where 270,000
farmers, many trapped in debt for buying seeds and chemicals, committed suicide between
1995 and 2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an
important ingredient in Ayurvedic medicine, and is of special value for the treatment of
diabetes and liver problems. The attempted commercial propagation of Bt brinjal spawned
intense debate and suffered obstacles due to sustained opposition from local scientists,
academicians and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin
of eggplant's diversity, said that if the new technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields and greater food availability, can be
expected. But opponents argued, alongside food safety concerns, that there is a potential
for toxic effects on populations of non-target invertebrates, and potential replacement of
traditional landraces as farmers may move towards cultivation of a restricted number of GE
forms. In addition to these issues, there was the additional concern raised over the transfer
of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant
biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court
formed a Technical Evaluation Committee (TEC) composed of experts nominated by the
parties to undertake a comprehensive evaluation of the feasibility of allowing the open field
trials of Bt brinjal and submit a final report, and in the event the TEC is unable to submit
said final report, it was directed instead to submit an interim report within the period set by
the Court on the following issue: Whether there should or should not be any ban, partial or
 82

otherwise, upon conducting of open field tests of the GMOs? In the event open field trials
are permitted, what protocol should be followed and conditions, if any, that may be imposed
by the Court for implementation of open field trials." The Court also directed that the TEC
would be free to review report or studies authored by national and international scientists if
it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its
findings, all field trials should be stopped until certain conditions have been met. A Final
Report126 was eventually submitted to the Court which noted weaknesses in the conditions
imposed by the regulatory agencies for conduct of field trials, as follows: 1) post-release
monitoring, an important aspect of environmental and health safety (if the GE crop is
consumed as food) is not given adequate attention; 2) the importance of need and socio-
economic impact assessment of GM products as one of the criteria that should be applied in
the evaluation at an early stage; and 3) need for additional tests not currently done such as
long-term feeding studies for assessment of chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the toxicity studies to screen for possible
unintended effects on host physiology. It was recommended that a moratorium on field
trials of herbicide tolerant crops until the issue had been examined by an independent
committee, and also noted that said technology may not be suitable in the Indian socio-
economic context due to possible impact of extensive use of broad spectrum herbicides on
the environmental biodiversity and smaller average farm size. Examination of the safety
dossier of Bt brinjal indicated certain concerns on the data, which had not been addressed in
the course of regulatory testing leading to approval due to lack of full-time qualified
personnel for the purpose. Overall, it was found that the quality of information in several of
the applications is far below what would be expected and required for rigorous evaluation by
a regulatory body and is unlikely to meet international regulatory guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under
certain conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also,
while it is generally believed that Cry toxins do not exert an effect on vertebrates as
vertebrates lack the receptor for Cry toxins, two studies (one in mice and the other in cows)
have provided evidence that Cry proteins can bind to mammalian intestinal epithelial cells.
The report also discussed the emergence of resistance in insect pests, health and food
safety of Bt transgenics, and herbicide tolerant crops and their effect on biodiversity and the
environment. Specific recommendations were made to address the foregoing issues and the
report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be
extraordinarily compelling reasons and only when other choices are not available. GM crops
that offer incremental advantages or solutions to specific and limited problems are not
sufficient reasons to justify such release. The TEC did not find any such compelling reasons
under the present conditions. The fact is that unlike the situation in 1960s there is no
desperate shortage of food and in fact India is in a reasonably secure position. The TEC
therefore recommends that release of GM crops for which India is a centre of origin or
diversity should not be allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an indefinite moratorium on its further field
testing. This was done after discussions with scientists, both pro and anti-GM crops,
activists and farmers across the country.

GMO Field Trials in the Philippines

 83

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI.
Petitioners EMB, BPI and FPA all maintain there was no unlawful deviation from its
provisions and that respondents so far failed to present evidence to prove their claim that Bt
talong field trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an
advisory body, was tasked to "evaluate the potential risks of the proposed activity to human
health and the environment based on available scientific and technical information." Under
DA Special Order 241 and 384 (2002) the STRP membership was expanded to include "an
independent pool of experts...tapped by the [BPI] to evaluate the potential risks of the
proposed release of GMOs for field testing, propagation, food, feed to human health and the
environment based on available scientific and technical information."

DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test
are received and processed by DA-BPI, but the approval process for projects on contained
use remains under the supervision of NCBP. A mandatory risk assessment of GM plant and
plant products is required prior to importation or release into the environment. Experiments
must first be conducted under contained conditions, then the products are tested in field
trials the product is reviewed for commercial release. Risk assessment is done according to
the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is
science-based, carried out on a case by case manner, targets a specific crop and its
transformation event, adopts the concept of substantial equivalence in identifying risk,
allows review, and provides that the absence of scientific information or consensus should
not be interpreted to indicate the absence or presence and level of risk. 128

Greenpeace, however, claims there is actually only a committee of three to five members
which conducts the risk assessment, and is aided by an informal group, the DA's Biotech
Advisory Team (BAT), of representatives from government biotech regulatory agencies: BPI,
BAI, FPA, DENR, DOH and DOST. It also assails the government regulatory agencies for
their refusal to open to scrutiny the names and qualifications of those incharge of regulation
and risk assessment, and for allowing the entry and use of all GMO applications requested
by multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases
for regulating field trials of GM plants and plant products. EO 514 130 establishing the
National Biosafety Framework (NBF) clearly provides that the NBF shall apply to the
development, adoption and implementation of all biosafety policies, measures and
guidelines and in making biosafety decisions concerning the research, development,
handling and use, transboundary movement, release into the environment and management
of regulated articles.131 The objective of the NBF is to "[e]nhance the decision-making
system on the application of products of modern biotechnology to make it more efficient,
predictable, effective, balanced, culturally appropriate, ethical, transparent and
participatory".132 Thus, "the socio-economic, ethical, and cultural benefit and risks of
modern biotechnology to the Philippines and its citizens, and in particular on small farmers,
indigenous peoples, women, small and medium enterprises and the domestic scientific
community, shall be taken into account in implementing the NBF."133 The NBF also
mandates that decisions shall be arrived at in a transparent and participatory manner,
recognizing that biosafety issues are best handled with the participation of all relevant
stakeholders and organizations who shall have appropriate access to information and the
 84

opportunity to participate responsibly and in an accountable manner in biosafety decision-

making process.134

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which
reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and
the relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10
(par. 6) and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The
principles and elements of this approach are hereby implemented through the decision-
making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies
are expected to follow and which their respective rules and regulations must conform with.
In cases of conflict in applying the principles, the principle of protecting public interest and
welfare shall always prevail, and no provision of the NBF shall be construed as to limit the
legal authority and mandate of heads of departments and agencies to consider the national
interest and public welfare in making biosafety decisions.135

As to the conduct of risk assessment to identify and evaluate the risks to human health and
the environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when
performing a RA to determine whether a regulated article poses significant risks to human
health and the environment:chanRoblesvirtualLawlibrary

5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner
based on available scientific and technical information. The expert advice of
and guidelines developed by, relevant international organizations,
including intergovernmental bodies, and regulatory authorities of
countries with significant experience in the regulatory supervision of
the regulated article shall be taken into account in the conduct of risk
assessment;

5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be

interpreted as indicating a particular level of risk, an absence of risk, or an
acceptable risk;

5.2.1.3 The identified characteristics of a regulated article and its use which have the
potential to pose significant risks to human health and the environment shall be
compared to those presented by the non-modified organism from which it is
derived and its use under the same conditions;

5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation
event. The required information may vary in nature and level of detail from
case to case depending on the regulated article concerned, its intended use and
the receiving environment; and,
 85

5.2.1.5 If new information on the regulated article and its effects on human health and
the environment becomes available, and such information is relevant and
significant, the RA shall be readdressed to determine whether the risk has
changed or whether there is a need to amend the risk management strategies
accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and

agencies shall be in accordance with the policies and standards on RA issued by the NCBP.
Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department
and agencies may issue their own respective administrative issuances establishing the
appropriate RA under their particular jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to
biosafety decisions shall be determined by concerned departments and agencies
subject to the requirements of law and the standards set by the NCBP. Where
applicable and under the coordination of the NCBP, concerned departments and agencies
shall issue joint guidelines on the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national
biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not
sufficient. Notably, Section 7 of the NBF mandates 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 in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote,
facilitate, and conduct public awareness, education, meaningful, responsible and
accountable participation. They shall incorporate into their respective administrative
issuances and processes best practices and mechanisms on public participation in
accordance with the following guidelines:chanRoblesvirtualLawlibrary

7.1 Scope of Public Participation. - Public participation shall apply to all stages of the
biosafety decision-making process from the time the application is received. For
applications on biotechnology activities related to research and development, limited
primarily for contained use, notice of the filing of such application with the NCBP shall be
sufficient, unless the NCBP deems that public interest and welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation

processes, the following minimum requirements shall be
followed:chanRoblesvirtualLawlibrary

7.2.1 Notice to all concerned stakeholders, in a language understood by them and through
media to which they have access. Such notice must be adequate, timely, and effective and
posted prominently in public places in the areas affected, and in the case of commercial
releases, in the national print media; in all cases, such notices must be posted electronically
in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such
procedures should allow relevant stakeholders to understand and analyze the benefits and
risks, consult with independent experts, and make timely interventions. Concerned
 86

departments and agencies shall include in their appropriate rules and regulations specific
time frames for their respective public participation processes, including setting a minimum
time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be
made. These could include formal hearings in certain cases, or solicitation of public
comments, particularly where there is public controversy about the proposed activities.
Public consultations shall encourage exchanges of information between applicants and the
public before the application is acted upon. Dialogue and consensus-building among all
stakeholders shall be encouraged. Concerned departments and agencies shall specify in
their appropriate rules and regulations the stages when public consultations are appropriate,
the specific time frames for such consultations, and the circumstances when formal hearings
will be required, including guidelines to ensure orderly proceedings. The networks of
agricultural and fisheries councils, indigenous peoples and community-based
organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms
that allow public participation in writing or through public hearings, as
appropriate, and which allow the submission of any positions, comments,
information, analyses or opinions. Concerned departments and agencies shall include in
their appropriate rules and regulations the stages when and the process to be followed for
submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation

and submission of written comments. Public concerns as reflected through the procedures
for public participation shall be considered in making the decision. The public shall be
informed of the final decision promptly, have access to the decision, and shall be provided
with the reasons and considerations resulting in the decision, upon request.
We find 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. The failure of DAO 08-2002 to accommodate the NBF means that the
Department of Agriculture lacks mechanisms to mandate applicants to comply with
international biosafety protocols. Greenpeace's claim that BPI had approved nearly all of the
applications for GMO field trials is confirmed by the data posted on their website. For these
reasons, the DAO 08-2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials 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 should apply to the release of GMOs into the environment and issue joint guidelines
on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and
indirect impacts of a project on the biophysical and human environment and ensuring that
these impacts are addressed by appropriate environmental protection and enhancement
measures. It "aids proponents in incorporating environmental considerations in planning
their projects as well as in determining the environment's impact on their project." There
are six stages in the regular EIA process. The proponent initiates the first three stages while
the EMB takes the lead in the last three stages. Public participation is enlisted in most
stages.136

Even without the issuance of EO 514, GMO field testing should have at least been
 87

considered for EIA under existing regulations of petitioner EMB on new and emerging
technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups,
e.g. projects using new processes/technologies with uncertain impacts. This is an
interim category - unclassified projects will eventually be classified into their appropriate
groups after EMB evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to
undertake activities or projects which will affect the quality of the environment are required
to prepare a detailed Environmental Impact Statement (EIS) prior to undertaking such
development activity.138 An environmentally critical project (ECP) is considered by the EMB
as "likely to have significant adverse impact that may be sensitive, irreversible and diverse"
and which "include activities that have significant environmental consequences." 139 In this
context, and given the overwhelming scientific attention worldwide on the potential hazards
of GMOs to human health and the environment, their release into the environment through
field testing would definitely fall under the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on
whether his office undertook the necessary evaluation on the possible environmental impact
of Bt talong field trials subject of this case and the release of GMOs into the environment in
general. While he initially cited lack of budget and competence as reasons for their inaction,
he later said that an amendment of the law should be made since projects involving GMOs
are not covered by Proclamation No. 2146140. Pertinent portions of his testimony before the
CA are herein quoted:
xxxx

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the
PEISS law. Granting Mr. Witness that a certain project or undertaking is not classified as
environmentally critical project, how would you know that the BT talong field testing is not
located in an environmentally critical area this time?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Objection Your Honor, argumentative.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Witness may answer.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along
the Petition, petitioners never alleged that the project, the subject matter rather of this
instant petition, is within an environmentally critical project.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Your Honor the Witness did not answer the question.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary
 88

Please answer the question.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Personally I have conferred with our personnel from the Environmental Impact Assessment
Division and they intimated to me that the locations of the project, rather of this subject
matter of the instant petition, not within any declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

In other words, you are aware of the area where the BT Talong experiments are being
conducted. Is that the premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Judging from previous discussions we had . . . judging from the Petition, and showing it to
the as I said personnel from Environmental Impact Division at our office, as I said they
intimated to me that it's not within declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

That being the case, you did not act further? [You] did not make any further
evaluation, on whether the activity has an environmental impact? Is that the correct
premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the
legal aspects of the Bureau's affairs. But when it comes to highly technical matters, I have
to rely on our technical people especially on environmentally impact assessment matters.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

I will just ask him another question Your Honors. So did the Department of Agriculture Mr.
Witness coordinate with your Office with regard the field testing of BT Talong?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office
with regard the field testing of BT Talong as required under the law?

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Already answered your Honor, objection.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

The witness in effect said he does not know, he's not in a position to answer.
 89

xxxx

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Your Honor that is speculative, the witness has just answered a while ago that the EMB has
not yet received any project with respect to that Your Honor. So the witness would not be in
a position to answer that Your Honors.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Lay the basis first.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

The earlier answer Your Honor of the witness is in general terms. My second question, my
follow-up question is specifically Your Honor the BT talong field testing.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well from where I sit Your Honors, it would appear that it could be categorized as
unclassified...

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Unclassified?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As the section will initially provide. But there must be prior ... may I continue to harp on
that Your Honors. There must be prior ... let's say conditions ... there must be prior
evaluation and assessment just the same by the EMB.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Prior to what Mr. Witness?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
 90

Yes please.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Initially they will be considered/categorized as unclassified but there will be hopefully a

subsequent evaluation or assessment of the matter to see if we also have the resources and
expertise if it can be finally unclassified. I should say should fall within the fairview of the
system, the EIA system. In other words, it's in a sort of how do you say that it's in a state
of limbo. So it's unclassified, that's the most we can do in the meantime.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate
the projects such as this one in particular?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, Your Honors as of now.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So therefore, when you say initially it's unclassified and then you're saying
afterwards the EMB needs evaluation but then you're saying the EMB is without
any capability to evaluate then what happens?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

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 the resources as of now and expertise to do just that.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So in other words you admit that the EMB is without any competence to make a
categorical or initial examination of this uncategorized activity, is that what you
mean?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by
request of the parties concerned.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary
 91

So that means you are waiting for a request? Are you not? Proactive in this activity in
performing your obligations and duties?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The
budget for the environment is hardly ... the ratio is ... if we want to protect indeed
the environment as we profess, with all due respect if Congress speaks otherwise.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your
Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters
related to environmental management, conservation and pollution control, right?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Thereafter you stated that you are tasked mainly with PD 1586 which refers to
Environmental Critical Areas of Projects and more specifically focused on Proclamation No.
2146. With respect to this BT Talong, you mentioned that this is at first is uncategorized, it's
not within?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

But you did mention that under the rules and regulations, even in an uncategorized activity,
pertaining to the environment, your Office has the mandate and then you later say that
your Office is without competence, do I follow your line of standing?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as
of now within Proclamation 2146.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Yes, but under the implementing rules your Office has the mandate to act on other
unclassified activities and you answered that your Office has no competence.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I
believe the Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
 92

The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-
EMB's lack of serious attention to their mandate under the law in the implementation of the
NBF, as provided in the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the
primary government agency responsible for the conservation, management, development
and proper use of the country's environment and natural resources, the Department of
Environment and Natural Resources (DENR) shall ensure that environmental
assessments are done and impacts identified in biosafety decisions. It shall also
take the lead in evaluating and monitoring regulated articles intended for bioremediation,
the improvement of forest genetic resources, and wildlife genetic resources.

xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal
point responsible for liaison with the Secretariat shall be the Department of Foreign Affairs.
The competent national authorities, responsible for performing the administrative functions
required by the Protocol, shall be, depending on the particular genetically modified
organisms in question, the following:chanRoblesvirtualLawlibrary

xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions
covered by the Protocol that concernregulated organisms intended for bioremediation,
the improvement of forest genetic resources, and wildlife genetic resources,
and applications of modern biotechnology with potential impact on the
conservation and sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the
concerned agencies to ensure that there will be funding for the implementation of the NBF
as it was intended to be a multi-disciplinary effort involving the different government
departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present
budgets to implement the NBF, including support to the operations of the NCBP and its
Secretariat. Starting 2006 and thereafter, the funding requirements shall be included in the
General Appropriations Bill submitted by each of said departments to Congress.

These concerned departments shall enter into agreement on the sharing of financial and
technical resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the
implementation of the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative
idea that governments are obligated to "foresee and forestall" harm to the environment. In
the following decades, the precautionary principle has served as the normative guideline for
policymaking by many national governments.142 The Rio Declaration on Environment and
Development, the outcome of the 1992 United Nations Conference on Environment and
Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the
common environment. It states that the long term economic progress is only ensured if it is
 93

linked with the protection of the environment.143 For the first time, the precautionary
approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which
indicates that lack of scientific certainty is no reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It has been incorporated in various
international legal instruments.144The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an
international regime primarily aimed at regulating trade in GMOs intended for release into
the environment, in accordance with Principle 15 of the Rio Declaration on Environment and
Development. The Protocol thus provides:
Article

10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of the living modified organism
in question as referred to in paragraph 3 above, in order to avoid or minimize such potential
adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and

knowledge regarding the extent of the potential adverse effects of a living modified
organism on the conservation and sustainable use of biological diversity in the Party of
import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of that living modified organism
intended for direct use as food or feed, or for processing, in order to avoid or minimize such
potential adverse effects.

xxxx
 94

Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted

as indicating a particular level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met145:

 there exist considerable scientific uncertainties;

 there exist scenarios (or models) of possible harm that are scientifically
reasonable (that is based on some scientifically plausible reasoning);

 uncertainties cannot be reduced in the short term without at the same time
increasing ignorance of other relevant factors by higher levels of abstraction
and idealization;

 the potential harm is sufficiently serious or even irreversible for present or

future generations or otherwise morally unacceptable;

 there is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal
link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity
to present or future generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. The precautionary principle bridges the gap in cases
where scientific certainty in factual findings cannot be achieved. By applying the
precautionary principle, the court may construe a set of facts as warranting either judicial
action or inaction, with the goal of preserving and protecting the environment. This may be
further evinced from the second paragraph where bias is created in favor of the
constitutional right of the people to a balanced and healthful ecology. In effect, the
precautionary principle shifts the burden of evidence of harm away from those likely to
suffer harm and onto those desiring to change the status quo. An application of the
precautionary principle to the rules on evidence will enable courts to tackle future
 95

environmental problems before ironclad scientific consensus emerges. 146

For purposes of evidence, the precautionary principle should be treated as a principle of last
resort, where application of the regular Rules of Evidence would cause in an inequitable
result for the environmental plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might
result would be serious. When these features

— uncertainty, the possibility of irreversible harm, and the possibility of serious

harm — coincide, the case for the precautionary principle is strongest. When in doubt,
cases must be resolved in favor of the constitutional right to a balanced and healthful
ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability.147

Assessing the evidence on record, as well as the current state of GMO research worldwide,
the Court finds all the three conditions present in this case - uncertainty, the possibility of
irreversible harm and the possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers,
majority of whom are poor and marginalized. While the goal of increasing crop yields to
raise farm incomes is laudable, independent scientific studies revealed uncertainties due to
unfulfilled economic benefits from Btcrops and plants, adverse effects on the environment
associated with use of GE technology in agriculture, and serious health hazards from
consumption of GM foods. For a biodiversity-rich country like the Philippines, the natural
and unforeseen consequences of contamination and genetic pollution would be disastrous
and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial
stages of risk assessment and public consultation, including the determination of the
applicability of the EIS requirements to GMO field testing, are compelling reasons for the
application of the precautionary principle. There exists a preponderance of evidence that the
release of GMOs into the environment threatens to damage our ecosystems and not just the
field trial sites, and eventually the health of our people once the Bt eggplants are consumed
as food. Adopting the precautionary approach, the Court rules that the principles of the NBF
need to be operationalized first by the coordinated actions of the concerned departments
and agencies before allowing the release into the environment of genetically modified
eggplant. The more prudent course is to immediately enjoin the Bt talong field trials and
approval for its propagation or commercialization until the said government offices shall
have performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the
government fixes regulatory and safety aspects - as relevant because majority of Filipino
farmers are also small-scale farmers. Further, the precautionary approach entailed inputs
from all stakeholders, including the marginalized farmers, not just the scientific community.
This proceeds from the realization that acceptance of uncertainty is not only a scientific
issue, but is related to public policy and involves an ethical dimension. 148 For scientific
research alone will not resolve all the problems, but participation of different stakeholders
from scientists to industry, NGOs, farmers and the public will provide a needed variety of
perspective foci, and knowledge.149
 96

Finally, while the drafters of the NBF saw the need for a law to specifically address the
concern for biosafety arising from the use of modern biotechnology, which is deemed
necessary to provide more permanent rules, institutions, and funding to adequately deal
with this challenge,150 the matter is within the exclusive prerogative of the legislative
branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of
Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as
follows:chanRoblesvirtualLawlibrary

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY
ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL
AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms is TEMPORARILY
ENJOINED until a new administrative order is promulgated in accordance with law.

No pronouncement as to costs.

SO ORDERED.