Next steps after BT Talong decision
Last month, the Supreme Court permanently halted the field testing for genetically modified eggplant, Bt (Bacillus thuringiensis), and upheld the earlier Court of Appeals decision which stopped the field trials for the GM plant. The Court also voided Department of Agriculture’s Administrative Order No. 08, series of 2002 on the ground that it lacks the minimum safety requirements under Executive Order 514, which established the National Biosafety Framework.
In concurring with the majority opinion, Justice Marvic Leonen pointedly noted that an applicant for GMO testing, not the community, chooses community representatives to the relevant biosafety committee. Notices regarding such testing are merely posted in conspicuous places in the area, with no requirement for meaningful meetings with the community or local government concerned. Justice Leonen dismissed the regulation as “nonchalant.” For his part, Justice Presbitero Velasco’s concurring opinion also argued that the Bt talong testing failed to comply with environmental impact assessment requirements under older laws.
The main decision found occasion to apply the precautionary principle. The Precautionary principle is expounded at length by Nassim Nicholas Taleb, among others, in his treatise: “The Precautionary Principle (with Application to the Genetic Modification of Organisms).” Nassim explained that “if an action or policy has a suspected risk of causing severe harm to the public domain (affecting general health or the environment globally), the action should not be taken in the absence of scientific near-certainty about its safety. Under these conditions, the burden of proof about absence of harm falls on those proposing an action, not those opposing it. The precautionary principle, the established rule of evidence in environmental cases in the Philippines, is intended to deal with uncertainty and risk in cases where the absence of evidence and the incompleteness of scientific knowledge carries profound implications and in the presence of risks of “black swans,” unforeseen and unforeseeable events of extreme consequence.” This principle was heavily invoked by the Court in banning the field testing of genetically modified eggplant and declare null and void the aforementioned DA Administrative Order.
The case gave three requisites to warrant the application of the principle; namely: Settings in which the risks of harm are uncertain; settings in which harm might be irreversible and what is lost is irreplaceable; and settings in which the harm that might result would be serious. For the Court, “When these features—uncertainty, the possibility of irreversible harm, and the possibility of serious harm—oincide, 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.”
In its petition, Greenpeace, Masipag et. al cited the 2010 Procedure for Environmental Cases of the Philippine where the Court laid down the rule that if there is uncertainty in assessing the cause-and-effect relationship between human activities and the environment, actions shall be taken by the court considering the following factors: 1) threats to human life or health; 2) inequity to present or future generations, and; 3) prejudice to the environment without legal consideration of the environmental rights of those affected. I am proud to claim that I helped draft this rule in 2010, which includes the Writ of Kalikasan used in this case.
Let us recall that earlier Greenpeace and the farmers’ group Masipag filed before the Court of Appeals’ petition to stop respondents UP Los Baños Foundation Inc, UP Mindanao Foundation Inc, the Department of Agriculture, and the Department of Environment and Natural Resources from conducting the field test. In 2013, the CA came out with a decision favoring the petitioners and ordered the stoppage of the nationwide field testing of the Bt eggplant. In the mind of the appellate court, existing regulations of the DA and the Department of Science and Technology were not enough to ensure the safety of the environment and health of the people. The Supreme Court agrees.
While the SC decision was hailed by petitioners Greenpeace and fellow activists, it has also set a flurry of criticisms among scientists. In my view. however, the criticism is baseless. I agree with Inquirer columnist Oscar Franklin Barcelona Tan on his observation that the critics did not seem to read the decision; certainly they did not understand it accurately.
As far as I can see, the criticism comes from very good scientists but they would not make good lawyers as they miss entirely the point of the decision—that our biosafety regulations are seriously outdated and antiquated and did not conform to the government’s own National Framework on Biosafety. I led the team that drafted the National Biosafety Framework. The scientific community and all the departments accepted this framework; in fact, citizen groups objected to the NBF for not going far enough even as it incorporated the precautionary principle and highest standards of scientific and socio-economic risk assessment, transparency, and public participation. All the Supreme Court did was to evaluate the biosafety regulations of the Department Agriculture according to that framework and found it wanting.
The Supreme Court did not stop scientific progress. Far from it in fact; the decision enables scientific progress by laying down the markers for a good regulatory process. All the government needs to do now is to draft and adopt, after intensive public consultations, the appropriate biosafety regulations. That should be doable in the next 12 months.
Facebook Page: Dean Tony La Viña Twitter: tonylavs