City asks SC to reverse aerial spray reject order

THE CITY government and a civil society group have filed petitions to ask the Supreme Court to reverse its ruling that junked the city ordinance banning aerial spraying in banana plantations in the city, a measure that was signed by then mayor and now President Rodrigo Duterte that took effect in 2007.

The SC, in its decision released last August, affirmed the decision of the Court of Appeals and called Davao City Ordinance no. 309-07 unconstitutional.

Atty. Enrique Bonocan, counsel for the city, said the ordinance was not oppressive, claiming that it “intended to provide a speedy remedy to alleviate the personal sufferings” of residents living near banana plantations using the method.

In the City Hall petition, Bonocan also questioned the testimony of two witnesses who claimed that any change in the methods of spraying would cost the companies at least P400 million.

The lawyer also reiterated that the ordinance did not prohibit the fungicide per se but just the method of using aircraft to dispense the said substances.

The City Legal Office added that the ordinance did not intend to get rid of the banana industry and other agricultural activities.

The CLO countered that instead of the city acting ultra vires on passing the ordinance, it was using its “valid exercise of police power” to enact an environmental law against indiscriminate aerial spraying of chemicals in the banana plantations.

Among the reasons for the desire to prohibit the practice is the alleged possible effect of the fungicide to the city’s water supply.

Meanwhile, law firm Sentro ng Alternatibong Lingap Panlegal (Saligan) claimed there was enough time for the banana industries to adapt to manual and boom spraying methods once the ordinance is enacted.

The measure, Saligan said, allows for a three-month transition period.

The petitioner added that the precautionary principle should be applied in the case.

Saligan represented the main petitioners in the suit that include Wilfredo Mosqueda, Marcelo Villaganes, Julieta Lawagon, Crispin Alcomendras, Virginia Cata-ag, Rebecca Saligumba, Florencia Sabandon, Carolina Pilongco and Ledevina Adalawan.

The CLO petition was submitted on Oct. 18, while the Saligan petition was dated October 6 in Quezon City.

Section 5 of the ordinance bans aerial spraying in the city three months after the ordinance took effect on March 23, 2007, prompting the Pilipino Banana Growers and Exporters Association Inc. to bring the issue to court.

The Regional Trial Court initially favored the City Ordinance. But the 22nd Division of the Court of Appeals, in 2009, reversed the RTC order, a ruling that was affirmed by the Supreme Court.

In its decision released last August, the SC said the ordinance violated the equal protection clause in the Constitution since it prohibited aerial spraying regardless of the substance or the level of concentration of the chemicals to be applied and imposed the 30-meter buffer zone in all agricultural lands in the city regardless of the size of landholdings.

The CS said the ordinance has violated the due process rights of banana growers.

The three-month period, the SC ruled, will be an inadequate time to shift from aerial to truck-mounted boom spraying as this effectively deprives them of efficient means to combat disease.

The SC said the city government had no authority to regulate and control pesticides and other agricultural chemicals, which is lodged with the Fertilizer and Pesticides Authority.

“In enacting the ordinance without the inherent and explicit authority to do so, the City performed an ultra vires act (Latin for beyond one’s legal authority). Moreover, the ordinance purported to prohibit an activity already covered by the jurisdiction of the FPA which has issued its own regulations under Memorandum Circular No. 02 (S. 2009),” the SC said.

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