Rules of engagement

The Ecological Solid Waste Management Act, R.A. 9003, was enacted back in 2001. It mandated the National Solid Waste Management Commission (NSWMC) to prepare a non-environmentally acceptable products (NEAP) list within a year from its effectivity. It is only this year that a list has somehow been conjured up. We are five years into the term of President Rodrigo R. Duterte, long after DENR secretaries and NSWMC chairs under presidents Gloria Macapagal Arroyo and Benigno C. Aquino III have come and gone.

Twenty years to act. Civil society groups have had enough. The pique is understandable and utterly justified. Cong. Loren Legarda’s resolution early this month to investigate and audit the NSWMC could have come earlier. Even the monumental announcement that a list was ready – last February’s big news – ended up limited only to plastic straws and stirrers. Bigger ticket NEAPs like plastic spoons and forks, plastic labo bags, bottles, take out containers, among others, were not included. The list, by the way, has yet to even be signed.

The Philippines has become notorious in the arena of plastics pollution. We are the third largest source of discarded plastic that ends up in the ocean. Just recently, Pasig River was identified by a Netherlands-based non-profit organization as far and away the top polluter of oceans among all rivers in the world.

Congress would not micro-manage on this. It passed on to the NSWMC as administrative agency (with rule making power) the grunt work to implement the policy as per standards enunciated in the statute. But the NSWMC has not delivered. Hence, the notice served by OCEANA et. al. that continued dithering will result in legal action.

Subsidiarity rules. In the meantime, local governments have taken the lead. Pending action on the list, several cities and municipalities led in regulating the use of plastic products. With the issue crying out to be addressed and the national government taking its time, local officials acted on this matter of great importance to their constituencies. As of 2019, 316 local government units (LGUs) had ordinances banning outright the use of plastic bags, including plastic straws and stirrers.

The NEAP listing, like any government regulation, is subject to challenge by affected interests. Even if straws and stirrers are on the list, Congress continues to entertain initiatives to regulate or tax single use plastics. This means permitting their use and would clearly impact on the LGU bans.

The case of these plastic products is evocative of the disorder caused by divergent strands of national and local governance endeavors. We can imagine several comparable situations where national and local policymakers clash. Among them: the not-in-my-backyard (NIMBY) scenarios of refusing to host common sanitary landfills; leading on local smoking bans and gender neutral restrooms; South Cotabato province’s prohibition on open pit mining; Davao City’s firecrackers ban; Manila’s contraception ban; the Manila and Navotas truck bans; Valenzuela City’s suspension of the NLEX Corp.’s Tollway operations; the LGU-led backlash against the Land Transportation Office’s Motor Vehicle Inspection System and, the latest imbroglio, the community pantry initiatives.

Concurrence rules. In systems such as ours, we inevitably see the confluence of regulatory spheres between national and sub-national governments. This is emblematic of decentralization where we endure actual, justiciable cases of confrontation between local legislative issuances and national initiatives. Philippine jurisprudence is replete with such showdowns. Sec. Eduardo Año should take note that local issuances are upheld by the Supreme Court about as often as they are displaced.

Hence, this latest Cebu v. Manila pissing contest on quarantine protocols will not be easily dismissed by a statement that “national policies prevail over local ordinances.” It would be more comforting to all if the DILG secretary could exhibit a more perceptive appreciation of the rules of engagement between national and local governments, most especially in light of the clear constitutional policy guaranteeing the autonomy of LGUs.

The President himself never wavered in recognizing this. His reaction to the recent controversial suspension of the NLEX Toll Plaza’s business permit by the City of Valenzuela was indicative. It was an admission in favor of the LGU and against the interest of the national government. The President was emphatic: “You cannot come barging in and overruling them because they (LGUs) have that inherent right.” As a former local chief executive, the President knows keenly that the Constitution limits the Executive power over LGUs to supervision only.

As we wrote last week, the quarantine power is local. The President, however, has been empowered by Congress through Bayanihan I and II to compel the obeisance of LGUs on pandemic response policies. The statutory language reads: “Ensuring that all LGUs are acting within the letter and spirit of all the rules, regulations and directives issued by the national government.”

Arguably, this confers upon him powers that exceed mere supervision. No one has thought to test the contours of this temporary cranking up of power. In this context, we welcome the Cebu effort to seek clarity from the Court on who prevails on the airport quarantine issue.

Concurrence of regulatory power in this multiple level governance is a reality. In this, Secretary Año must be guided. And if there is to be a resolution of the clash, it would involve an ex-post analysis, followed by the deliberation of a judicial forum.

Of course, the general rule is that national policies trump local initiatives. But this is true if there is legislative intent, explicit or implied, that can be established in each instance. Absent a clear touchstone, it is a disservice to LGUs and the constitutional principle of local autonomy to proclaim that local ordinances and policies are to automatically conform to national IATF resolutions which are binding and mandatory.

Glossary. Halfcinated – having received the first dose of a two-dose vaccine.