Citizen Suit Policy Enforcement Guidelines

2008

DOTC ADMINISTRATIVE ORDER NO. 01-08

 

SECTION 1. Legal Basis. —

Pursuant to Section 41 of Republic Act No. 8749, also known as the "Philippine Clean Air Act of 1999," and Rule LII of DAO 2000-81, the Department of Transportation and Communications (DOTC) hereby promulgates the following guidelines for the operationalization of the citizen suit provision thereof.

SECTION 2. Objectives. —

This Order is being issued for the purpose of establishing a system for the implementation and operationalization of the citizen suit policy in the Philippine Clean Air Act (hereafter referred to as "the Act") within the jurisdiction of the DOTC. The citizen suit policy seeks to achieve the following:

(a) promote the participation of the citizens in the enforcement of the Act;

(b) serve as stimulus to government officials to take the necessary and appropriate action to abate and/or control pollution; and

(c) maximize the value of public pressure to promote a shift in the behavior of polluters.

SECTION 3. Definition of Terms. —

For purposes of this Order, the following terms shall mean:

1. Citizen Suit refers to a proceeding brought before the proper forum by citizen(s) who seek to enforce the rights or obligations created under the Act.

2. Civil Action refers to one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

3. Criminal Action refers to one by which the State prosecutes a person for an act or omission punishable by law.

4. Administrative Action refers to one by which a party can avail of a non-judicial remedy against an officer for a non-performance of a duty or function. DECSIT

5. Department refers to the Department of Transportation and Communications.

6. Notice of Intent to Sue refers to the 30-day notice given by any citizen who intends to file citizen suit against any violator of the Act.

7. Officer as distinguished from "clerk" or "employee" refers to a person whose duties, not being of a clerical or manual in nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function.

8. Prospective citizen/plaintiff refers to any person who served a Notice of Intent to Sue with the intention of filing a citizen suit pursuant to the Act.

9. Parties directly affected refers to the real party in interest who is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

SECTION 4. Scope and Coverage. —

This Order shall apply to any administrative, civil or criminal action or remedy that any citizen intends to file with the proper forum pursuant to the citizen suit provision under the Act involving mobile sources against any of the following parties:

(a) Any private natural or juridical person, including government-owned and controlled corporations, who violates or fails to comply with the provisions of the Act;

(b) The Department in case of orders or rules issued inconsistent with the Act. For this purpose, unless the inconsistency is so blatant as to manifest evident bad faith, the action available herein shall only be civil in nature, such as for declaratory relief and/or injunction. The government official who was made a respondent in said civil action shall be sued in his official capacity and shall not be liable for damages;

(c) Any officer of the Department who willfully or grossly neglects to perform the duties provided for under the Act, or who abuses his authority or in any manner improperly performs his duties under the Act and its Implementing Rules and Regulations. aTcSID

Provided, that, upon filing of the action before the appropriate forum, the rules of procedure for each forum or court shall apply. Provided, also that, any suit filed by any person directly affected by the alleged act or DOTC against violators of the Act shall be independent from the Traffic and Adjudication System for administrative case and the Ombudsman for cases against public officers.

SECTION 5. Notice of Intent to Sue. —

Pursuant to Section 4 of Rule LII of DAO 2000-81, administrative, criminal or civil remedies against any party initiated as to a citizen suit shall be filed with the proper forum only after a 30-day Notice of Intent to Sue is given by the prospective citizen/plaintiff to the alleged violator, with a copy furnished to the Department. The 30-day notice shall be a condition precedent to the filing of the case and given for purposes of allowing the alleged violator the opportunity to undertake the necessary measures to abate the pollution. Provided, that any person directly affected by the alleged act, or the Department through the LTO can motu proprio file action against violators of the Act without the required notice.

SECTION 6. Service of Notice of Intent to Sue. —

Notice of Intent to Sue shall be served by the prospective citizen/plaintiff upon the Department or the LTO for issuing an Order or Rule inconsistent with the Act or its Implementing Rules and Regulations, or upon its officers who fail to perform an act or duty which is not discretionary under the Act in the following manner:

(a) Service of notice shall be accomplished by registered mail, return receipt requested, addressed to, or by personal service upon the officer and the Secretary of the Department.

(b) Notice given in accordance with the provisions of this Order shall be considered to have been served on the date of personal receipt. If service was accomplished by registered mail, the date of receipt will be considered to be the date of mailing noted on the return receipt card.

SECTION 7. Contents of Notice of Intent to Sue. —

(a) Failure to act. Notice regarding an alleged failure of an officer of the Department to perform an act or duty which is not discretionary under the Act shall identify the provisions of the Act which require such act or create such duty, shall describe with reasonable specificity the action taken or not taken by the officer which is claimed to constitute a failure to perform the act or duty, and shall state the full name, address, and telephone number of the person giving the notice. EAISDH

(b) Illegal Order or Rules. Notice regarding an alleged Order or Rules issued by the Department not consistent with the Act shall identify the provision(s) if the Act which has been violated by the said Order or Rules.

 The notice shall state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice.

SECTION 8. Written Response to Receipt of Citizen Suit Notice. —

Within 30 days from receipt of the Notice of Intent to Sue, the official of the Department who issued the order or rules inconsistent with the Act, shall respond to the Notice in writing and served to the prospective citizen/plaintiff. If the violation contemplates an officer who fails to perform an act or duty required under the Act, the response shall be served to the prospective citizen/plaintiff and the Secretary of the Department. Failure to respond to the Notice shall merit the filing of a citizen suit in the proper forum.

SECTION 9. Department's Response to Receipt of Citizen Suit Notice. —

Within ten (10) days upon receipt of a copy of a citizen's Notice of Intent to Sue, the Department shall respond in writing to the prospective citizen/plaintiff and the respondent-officer stating any action taken or planned with respect to the alleged violation. The Department may motu proprio file appropriate administrative charges against the respondent-officer. Notwithstanding the response given by the Department, the prospective citizen/plaintiff may file administrative, civil or criminal in the proper forum after the lapse of 30 days from Notice.

SECTION 10. Citizen Action Against Violation of Vehicle Emission Standards. —

The following guidelines shall govern citizen action against violation of Vehicle Emission Standards (VES):

(a) Report of Violation of VES. Any citizen may report alleged violations of vehicle emission standards by submitting to the Investigation Division of the LTO a picture or a video of the smoke-belching vehicle, together with the other relevant information such as plate number, date and location where the vehicle was caught on camera, and an affidavit signed by the photographer who took the picture stating that the photographer did not manipulate the picture.

(b) Issuance of a Show Cause Order. On the basis of the photography and other documentary support, the LTO shall issue a Show Cause Order to the owner of the vehicle subject of the report requiring the owner of the vehicle to show cause why an administrative case should not be filed against him/her for alleged violation of the VES. Provided, that, in the absence of an affidavit issued by the photographer/video-taker, or in cases of anonymous complaints, the LTO shall verify the information submitted, or complaint filed, to determine whether or not a Show Cause Order will be issued by the LTO on the basis of the same. ASHaDT

(c) Response to the Show Cause Order. Within 30 days from receipt of the Show Cause Order, the owner of the vehicle shall respond to the Show Cause Order and submit proof of compliance with Vehicle Emission Standards consisting of a vehicle Emission Testing Result issued by accredited/authorized Private Emission Testing Center (PETC) conducted not later than 30 days from submission of the same to LTO.

(d) Failure to Respond to the Show Cause Order. Failure to respond to the Show Cause Order within 30 days from receipt of the Show Cause Order shall merit the following actions:

(1) An annotation shall be caused to be placed in the vehicle registration record of the subject vehicle, and registration of the said vehicle shall be allowed only upon securing a clearance from the Investigation Division of the LTO; and,

(2) LTO shall alarm all enforcers of VES of the alleged violation for apprehension of subject vehicle by including the same in the LTO alarm list.

(e) Test for Compliance with VES. The LTO or its deputized enforcers who apprehended vehicles pursuant to this Section shall test the same for compliance with the VES.

(f) Complaint against Non-compliant Vehicles. If the apprehended vehicle fails to comply with the VES after a test conducted pursuant to this Section, a complaint shall be filed by the LTO in accordance with Rule LI of the Implementing Rules and Regulations of the Act.

 This Section is without prejudice to the roadside inspection system being undertaken by the Department and other deputized teams pursuant to Section 46 of the Act.

SECTION 11. Separability Clause. —

If any clause, provision or section of these Guidelines shall be declared unconstitutional or invalid, the remaining parts of these rules shall not be affected thereby, shall remain in full force and effect.

SECTION 12. Repealing Clause. —

All orders, rules and regulations inconsistent with or contrary to the provisions of these guidelines are hereby repealed or modified accordingly.

SECTION 13. Effectivity. —

These rules shall take effect immediately upon filing with the Office of the National Administrative Register (ONAR), and publication in two (2) national newspapers of general circulation. TCaSAH

Approved.

(SGD.) LEANDRO R. MENDOZA

FORM 1

________ 200 _________ (date)

CERTIFIED MAIL — RETURN RECEIPT REQUESTED

1.	Name of Vehicle Owner/Company	Name of DOTC/LTO Action
	Address: _____________________	Officer
	(if not available fill up item 2)	Date:
2.	Type of Vehicle, Plate Number, Body	Name of DOTC/LTO Officer
	Number when appropriate	Endorsing Complaint
		DECISION:
3.	Place/location where vehicle
	observed emitting black/grey smoke

 

Subject: Notice of Intent to Sue Pursuant to Section 41 of the Philippine Clean Air Act of 1999 (RA 8749) and its Implementing Rules and Regulations

Dear Sirs/Mesdames:

I am __________________, Filipino citizen, and a resident of ___________. [I represent _______________________.]

Pursuant to Section _________ of the Philippine Clean Air Act of 1999, I am writing [on their behalf] to give you thirty (30) days' notice of my/their intent to file a citizen suit against ____________ (name of vehicle owner/or name of company) for violating Section __________ of RA 8749. cSTCDA

Specifically, RA 8749 requires that all vehicles registered with the Land Transportation Office or its authorized offices shall comply with the vehicle emission standards.

I (My clients) intend to file suit against ____________ (name of vehicle owner/company) because, on the basis of the best information available and belief, you have violated RA 8749. On the basis of the best information available to us, I believe that the violations mentioned above include, but are not limited to, the following specific acts or omissions and date you committed:

________________________________________

________________________________________

________________________________________

________________________________________

I (My clients) intend to commence an administrative/civil action in 30 days after receipt of this Notice, pursuant to section __________ of RA 8749 and DAO ___________, to prosecute these incidents and similar or related violations, including all violations which occur or continue to occur after service of this notice, and all other violations revealed in the course of the litigation discovery process.

I (My clients) reserve the right to modify the descriptions of the incidents described in this letter either upon the commencement of the administrative/civil action or afterwards, depending upon revelations that may occur in the course of the litigation discovery process.

(The names, addresses, and telephone numbers of my clients are as follows:

1. _______________, ________________, tel. no. ________________,

2. ______________, _______________, tel. no. _______________.)

In the interest of resolving this matter through negotiation, I (my clients) request schedule of meeting with ____________ (name of vehicle owner/company) to discuss the issues raised in this letter on ______________ (date and time) at __________ (specific venue). Please direct all correspondence and inquiries to the undersigned at (address, phone number, or fax).

Yours truly,

_____________________

_____________________

_____________________

(Name/Address of Prospective Citizen/plaintiff/phone)

_____________________

_____________________

_____________________

(Name/Address of Counsel/phone)

FORM 2

____________ 200 _________ (date)
CERTIFIED MAIL — RETURN RECEIPT REQUESTED
Secretary
DENR/DOTC	DENR-CENRO/LTO-District Office
Address: ______________________	Address: ______________________
_____________________________	_____________________________
_____________________________	(Other Specify, if any)
EMB Director/LTO Chief	______________________________
Address: ______________________	______________________________
_____________________________
Regional Director/EMB/LTO
Region _______________________
Address: ____________________
_____________________________

 

Subject: Notice of Intent to Sue Pursuant to Section 41 of the Philippine Clean Air Act of 1999 (RA 8749) and its Implementing Rules and Regulations cACEHI

Dear Sirs/Mesdames:

I am ________________, Filipino citizen, and a resident of ______________. [I represent __________________.]

Pursuant to Section _______________ of the Philippine Clean Air Act of 1999, I am writing [on their behalf] to give you thirty (30) days' notice of my/their intent to file a citizen suit against you and the Department of Environment and Natural Resources (DENR)/Department of Transportation and Communications (DOTC) for your failure to perform duties mandated by RA 8749 for the issuance of DENR/DOTC Administrative Order/Decision in violation of RA 8749.

Specifically, RA 8749 requires that __________________ (state function/duty not performed/DAO/Decision issued that is not consistent with RA 8749).

I (My clients) intend to file suit against ________________ (name of DENR/DOTC official/s/officers) because, on the basis of the best information available and belief, you have violated RA 8749. On the basis of the best information available to us, I believe that the violations mentioned above include, but are not limited to, the following specific acts or omissions and date you committed: 1 AcICTS

________________________________________

________________________________________

________________________________________

________________________________________

I (My clients) intend to commence an administrative/civil action in 30 days after receipt of this Notice, pursuant to section _____________ of RA 8749 and DAO _____________, to compel you to perform your functions/recall/revoke the above-mentioned Order/decision and prosecute these incidents and similar or related violations, including all violations which occur or continue to occur after service of this notice, and all other violations revealed in the course of the litigation discovery process.

I (My clients) reserve the right to modify the descriptions of the incidents described in this letter either upon the commencement of the administrative/civil action or afterwards, depending upon revelations that may occur in the course of the litigation discovery process.

(The names, addresses, and telephone numbers of my clients are as follows: 1. __________________, ____________________, tel. no. ________________, 2. ______________, ________________, tel. no. _____________.)

In the interest of resolving this matter through negotiation, I (my clients) request schedule of meeting with ____________________ (name of government officer and designation) to discuss the issues raised in this letter on ______________ (date and time) at ____________________ (specific venue). Please direct all correspondence and inquiries to the undersigned at (address, phone number, or fax). ECTIcS

Yours truly,

_____________________

_____________________

_____________________

(Name/Address of Prospective Citizen/plaintiff/phone)

_____________________

_____________________

_____________________

_____________________

(Name/Address of Counsel/phone)

Footnotes

1. Note: Failure to act. Notice regarding an alleged of an officer of the Department to perform an act or duty which is not discretionary under the Act shall identify the provisions of the Act which require such act or create such duty, shall describe with reasonable specificity the action taken or not taken by the officer which is claimed to constitute a failure to perform the act or duty, and shall state the full name, address, and telephone number of the person giving the notice. aCIHcD

Illegal Order or Rules. Notice regarding an alleged Order or Rules issued by the Department not consistent with the Act shall identify the provision(s) of the Act which has been violated by the said Order or Rules.

 

Published in The Manila Times on September 11, 2008.