ARGUMENTS OF THE CITY GOVERNMENT OF DAVAO

I. The Honorable Court of Appeals erred in holding that Davao Citys regulatory choice of banning aerial spraying is void and in effect, failed to appreciate the scope of the local governments powers under the general welfare clause under the Local Government Code, and disregarded Section 5 of the same Code mandating an interpretation in favor of the local government of scope of the general welfare provision and the role it plays in upgrading the quality of life of the people (in this case, the people of Davao City)

The Court of Appeals held that the Local Government Unit (LGU) has power to enact ordinances under the general welfare clause of Local Government Code (LGC) to promote health and safety, and enhance the right of the people to a balanced ecology, citing Sections 458 (a)(1)(vi) and 458(a)(5)(xii)1. It held that these provisions give the LGU the power to enact ordinance to protect public health and environment against the alleged harmful effects of aerial spraying. The Court of Appeals failed to appreciate the nature of the power of the LGU to protect the public health and the environment. Protection contemplates not only reactionary measures but also preventive measures. The Code could not have meant that there should be a resulting actual harm before the LGU can act. The LGC gave the LGU the power to prevent ecological imbalance by punishing acts which it deems harmful to the environment. With an ordinance in place, such as Davao Citys Ordinance 03-09-07, the mere act, regardless of the result, is in itself punishable. The Court of Appeals also held that the banana planters cannot be unduly disturbed in the exercise of their right to property because they had acquired a right of prior appropriation based on the concept of first in time, first in right. In this regard, we adopt the well-reasoned opinion of the esteemed amici curiae, constitutionalist Father Joaquin Bernas, who points out that there is a hierarchy of rights protected under Article III, section 1 of the Constitution particularly in that the right to life takes precedence over the right to property. Another reason which shows us that the reasoning of the CA is misplaced is the presence of statutes and jurisprudence that give the City the power to regulate the use of land. Section 458 (a)(2)(vi) of the LGC gives the Sangguniang Panlungsod the power to prescribe reasonable limits and restraints on the use of property within the territorial jurisdiction. Section 458 (a)(2)(viii) of the LGC which gives the Sangguniang Panlungsod the power to reclassify land within the jurisdiction of the city, subject to the pertinent provisions of the Code. RA 8749, the Clean Air Act of 1999, in Sec 36, provides that LGUs shall share the responsibility in the management and maintenance of air quality within their territorial jurisdiction. The corresponding rule in the IRR issued by the DENR, which is the lead agency in the implementation of RA 8749, provides:
1

SEC. 458. - Powers, Duties, Functions and Compensation. - (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx (vi) Protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; xxx (5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall: xxx (xii) Approve measures and adopt quarantine regulations to prevent the introduction and spread of diseases;xxx.

Subject to Section 36 of the Act and pursuant to the Local Government Code (RA 7160) and other pertinent laws, the Local Government Units shall have the following roles in within their respective territorial jurisdiction: xxx e) To prepare and implement a program and other measure including relocation, whenever necessary, to protect the health and welfare of residents in the area; xxx (emphasis supplied)

In Social Justice Society v. Atienza2, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027, which reclassified the area occupied by oil depots of the oil companies from industrial to commercial and directed the owners and operators to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. The SC found no reason to delay the implementation of the ordinance, considering that the objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. It is clear that the City, thru its Sanggunian, has the power to regulate the use of land. It can even reclassify land. The holding of the Court of Appeals, therefore, that the plantations, having acquired a right of prior appropriation, cannot be unduly disturbed in their use of their landholdings and be prohibited, among other things, from practicing aerial spraying thereon to the detriment of their corporeal rights as the assailed Ordinance intends to impose, does not hold water. The above cited laws and jurisprudence further bolsters the argument that the power of the LGU to protect the health of the people and the environment encompasses preventive measures. In SJS v. Atienza3, there was no harm yet, as there had not been any terrorist attacks on the oil terminals, and yet the SC upheld the power of the LGU to enact such an ordinance. In fact, holding otherwise would have been absurd. In RA 8749 and its IRR, the management and maintenance of air quality means that the LGU should act even before the pollution becomes harmful.

GR No. 156052, March 7, 2007. Id.

II. The Honorable Court of Appeals gravely abused its discretion in holding that the Ordinance 03-09-07 is an unreasonable exercise of its delegated police power. Specifically, the Court patently erred in its findings concerning: 2.1. Unreasonableness of the three month period for compliance with the ordinance even in light of the existence of other feasible alternatives, which could be speedily implemented The Court of Appeals held the 3-month period unreasonable, upholding the assertion of the banana planters that the shift would take at least three years. The alternatives considered were truck mounted boom spraying, backpack spraying, and sprinklers. The Court of Appeals was wrong in limiting its discussion to three modes of ground spraying as the only alternatives to aerial spraying, without looking into, or inquiring into or even considering the feasibility of, other alternative modes. The aerial spraying performed by in the plantations serve the purpose of delivering fungicides to fight the effects of the Black Sigatoka disease caused by fungus. The fungus responsible for this disease attacks the leaves of banana plants causing the plant to produce a lesser yield of fruits. Factors other than the spraying, such as sufficient spacing, good drainage, and removal of affected leaves also help fight the disease. These other factors should have been looked into by the CA, for example, if the plants are too close to each other, then the planters actually are helping the fungus to proliferate since the disease spreads from leaf to leaf. 2.2. Unfounded and self-serving estimates of banana growers of huge expenses to be incurred in complying with the ordinance, thereby unduly prioritizing business interests over the dangers of continued aerial spraying to human health and the environment.

In attacking the validity of the ordinance, the plantation owners presented Ms. Cembrano, a CPA, who said that the shift to ground spraying is feasible, subject to the availability of P400M. The bottomline is therefore, money. The plantations refuse to shift to ground spraying and instead assail the validity of the ordinance because it will entail major financing. It is, in sum, a question of balancing rights: the right to a balanced ecology and the right to life on the one hand, and the right to property on the other. In this jurisdiction, in cases involving conflict between the right to life and the right to property, the latter is subordinated to the former. The right to a balanced and healthful ecology was interpreted by the Supreme Court in Oposa v. Factoran held that: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and selfperpetuation --- aptly and fittingly stressed by petitioners --- the advancements of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby thereby highlighting their continuing importance and imposing upon the state the solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come --- generations which stand to inherit nothing but parched earth incapable of sustaining life.The right to a balanced and healthful ecology carries with it the correlative duty to refrain from imparing the environment.

III. Assuming without conceding that the three month period is unreasonable, The Honorable Court of Appeals erred in holding that the lack of separability clause would necessarily render the entire ordinance unconstitutional even in the face of legislative intent to the contrary.

The Court of Appeals erred in capitalizing too much on the absence of separability clause in the local ordinance, patently disregarding the caveat of the Supreme Court in Tatad vs. Secretary of Energy [ G . R . No . 124360 . December 3 , 1997} speaking thru Justice Puno (now Honorable Chief Justice: It is true that most of the time , such intent is expressed in a separability clause stating that the invalidity or unconstitutionality of any provision or section of the law will not affect the validity or constitutionality of the remainder . Nonetheless , the separability clause only creates a presumption that the act is severable . It is merely an aid in statutory construction . It is not inexorable command . A separability clause does not clothe the valid parts with immunity from the invalidating effect the law gives to the inseparable blending of the bad with the good . The separability clause cannot also be applied if it will produce an absurd result . i In sum , if the separation of the statute will defeat the intent of the legislature , separation will not take place despite the inclusion of a separability clause in the law .

That the legislative intent is to make it severable may be gleaned from the ordinance in question itself as well as from the records of the case. The primordial intent is to safeguard the health of the people of Davao particularly those living near banana plantations using aerial spraying. The three month period put in place was merely to assure the people of the seriousness of the City in safeguarding their health and welfare. In other words, the absence of the three month period does not negate the legislative intent to protect the citizens of Davao. To interpret the absence of a separability clause as a negation of legislative intent to make the provisions severable, would be an unjust and narrow-minded interpretation of the ordinance. Thus, we can ask: can the ordinance survive without the three month period? The answer clearly is in the affirmative. The respondents overemphasis on the absence of the separability clause is absurd. Are they therefore conceding that if the City of Davao amends the ordinance or enacts a new ordinance banning aerial spraying albeit with an extended period, they would now be amenable to abandoning the idea? Would they now be willing to abandon their theory that aerial spraying poses no deleterious effects to the environment and the people of Davao?

IV. The Honorable Court of Appeals gravely abused its discretion failing to appreciate the dangers of aerial spraying on the people of Davao City and the consequent environmental ramifications documented in cases here and abroad.

The United States Department of Agriculture4 in a study funded by said department made the following comments on the dangers of aerial application of pesticides: During aerial pesticide application, some part of applied material is lost to the atmosphere in the form of fine droplets moving off-target through the air stream by a process called spray drift. Spraying pesticides through spray nozzles produces a spectrum of droplet diameters. The smallest droplets will remain airborne and become lost as spray drift. Larger droplets can be transported by the wind and deposited some distance outside the target area. As droplets are transported, their diameter decreases through evaporation. As they become smaller, they remain airborne longer and can be transported over regional, continental, or intercontinental distances. Pesticides of moderate-to-high volatility sprayed above the soil surface form droplets that rapidly enter the gaseous phase and can be transported in the atmosphere. A portion of the pesticide that reaches the soil or plant surface also may evaporate over time and move into the atmosphere through a process of volatilization. Once in the atmosphere, a volatile pesticide can travel long distances. Loss during application through spray drift depends largely on application method, properties of the formulation, and environmental conditions. Volatilization losses from soil or plants depend largely on soil and environmental conditions, chemical properties of the pesticide, and agricultural management after application. Once a pesticide is in the atmosphere its movement and transformation are controlled by various atmospheric and chemical processes. Pesticides can degrade in the atmosphere during photosynthesis or in reaction with other atmospheric constituents. Some processes are particularly important in determining the ultimate concentration and transport distance from the point of application, which affects the risk of contaminating sensitive ecosystems. Xxxx

Potential impacts of pesticide loss to the atmosphere are (1) decline in air and water quality; (2) loss of beneficial insects and plants through off-site drift; (3) regional and long-range transport and degradation of soil, plant, and surface water quality; (4) accumulation and transfer of pesticide residues to sensitive wildlife and potential disruption of the food chain; and (5) degradation of the global atmosphere and loss of natural protective zones such as stratospheric ozone.

For a more specific appreciation of its dangers, we note that Mancozeb, the active ingredient of the fungicides used by the banana plantations, belongs to the ethylene bisdithiocarbamates class of chemicals. In the United States, EBDC fungicides are regulated by the Environmental Protection Agency (EPA) by requiring labels for protective clothing to be worn by agricultural workers and by cancelling the use of such chemicals in home applications because people dont wear protective clothing when they tend to their own gardens.5
4

The Official Website of the United Stated Department of Agriculture http://www.ars.usda.gov/research/programs/programs.htm?np_code=203&docid=324

The major routes of exposure to mancozeb are through the skin or from inhalation6. In spray form, EBDCs are moderately irritating to the skin and respiratory mucous membranes. Although there is no evidence of neurotoxicity, a bi-product of dithiocarbamates is carbon disulfide, which is a neurotoxin capable of damaging nerve tissue7. In the Philippines, the Clean Air Act of 1999 (RA 8749) provides a national ambient air quality standards necessary to protect health and safety, and general welfare, and lists carbon disulfide as a hazardous air pollutant8. EBDCs, including mancozeb, are generally considered to have low short-term toxicity to mammals. However, a breakdown product of mancozeb and other EBDCs, ethylenethiourea (ETU), is a major toxicological concern. ETU has the potential to
5

US EPA. 1992 (March 2). Ethylene bisdithiocarbamates (EBDCs); Notice of intent to cancel and conclusion of Special Review. Federal Register 57(41):7434-7530. US GAO, Washington, DC.
6

U. S. Environmental Protection Agency. 1987 (April). Pesticide fact sheet: Mancozeb. Registration Standard. Office of Pesticides and Toxic Substances. Office of Pesticide Programs. Washington, DC.
7

Hallenbeck, W. H. and K. M. Cunningham-Burns. 1985. Pesticides and human health. Springer-Verlag.

SEC. 12. Ambient Air Quality Guideline Values and Standards.- The Department, in coordination with other concerned agencies, shall review and or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standard necessary to protect health and safety, and general welfare. The initial list and values of the hazardous air pollutants shall be as follows: a) For National Ambient Air Quality Guideline for Criteria Pollutants:

Short Term a Long Term b Pollutants g/NcmPpmAveraging Timeg/NcmppmAveraging TimeSuspended Particulate Matterc-TSP 230d 24 hours90----1 yeare-PM-10150f 24 hours60----1 yeareSulfur Dioxidec1800.0724 hours800.031 yearNitrogen Dioxide1500.0824 hours------------Photochemical Oxidants1400.071 hour------------As Ozone600.038 hours ------------Carbon Monoxide 35301 hour---------------- Mg/Ncm 1098 hours------------ Mg/Ncm Leadg1.5----3 monthsg1.0----1 year a Maximum limits represented by ninety-eight percentile (98%) values not to be exceed more than once a year.
b

Arithmetic mean

SO2 and Suspended Particulate matter are sampled once every six days when using the manual methods. A minimum of twelve sampling days per quarter of forty-eight sampling days each year is required for these methods. Daily sampling may be done in the future once continuous analyzers are procured and become available.
d

Limits for Total Suspended Particulate Matter with mass median diameter less than 25-50 um. Annual Geometric Mean

Provisional limits for Suspended Particulate Matter with mass median diameter less than 10 microns and below until sufficient monitoring data are gathered to base a proper guideline.
g

Evaluation of this guideline is carried out for 24-hour averaging time and averaged over three moving calendar months. The monitored average value for any three months shall not exceed the guideline value. b) For National Ambient Air Quality Standards for Source Specific Air Pollutants from: Industrial Sources/ Operations: Pollutants1Concentration2 Averaging time (min.)Method of Analysis/ Measurement3 /Ncmppm 1. Ammonia2000.2830Nesselerization/ Indo Phenol2. Carbon Disulfide300.0130Tischer Method3. Chlorine and Chlorine Compounds expressed as Cl21000.035Methyl Orange4. Formaldehyde500.0430 Chromotropic acid Method or MBTH Colorimetric Method5. Hydrogen Chloride2000.1330Volhard Titration with Iodine Solution6. Hydrogen Sulfide100 0.0730 Methylene Blue7. Lead 20 30AASc8. Nitrogen Dioxide 375,2600.20,0.1430,60 Greiss- Saltzman9. Phenol 1000.0330 4-Aminoantiphyrine10. Sulfur Dioxide 470, 340 0.18, 0.13 30,60 Colorimetric-Pararosaniline11. Suspended Particulate Matter-TSP 300 ----60Gravimetric 1 Pertinent ambient standards for Antimony, Arsenic, Cadmium, Asbestos, Nitric Acid and Sulfuric Acid Mists in the 1978 NPCC Rules and Regulations may be considered as guides in determining compliance. 2 Ninety-eight percentile (98%) values of 30-minute sampling measured at 25 0C and one atmosphere pressure.
3

Other equivalent methods approved by the Department may be used.

The basis in setting up the ambient air quality guideline values and standards shall reflect, among others, the latest scientific knowledge including information on:

cause goiter, birth defects, and cancer. The EPA has classified ETU as a potential human carcinogen9. In humans, research shows that mancozeb is rapidly absorbed into the body from the gastrointestinal tract. Its major metabolite is ETU.10 Among the spraying methods, aerial spraying causes the most spray drift. This means that the chemicals sprayed in the plantations get blown by the wind towards neighboring communities that are not the target of the spray. Having already discussed the health hazards of mancozeb, it is not hard to imagine that the communities near the plantations are ones most exposed to these risks. Three factors found to have the greatest influence in the volatilization of pesticides are: (1) the physical properties and distribution characteristics of the pesticides active ingredient (e.g. VP and Henrys Law constant), (2) meteorological conditions (e.g. surface emission rate is positively correlated with temperature, low relative humidity and wind speeds/turbulence) and (3) environmental factors that can influence movement from the land surface boundary conditions (Jury et al., 1983a, b). In the case of aerial spray, the physical properties of the active ingredient (vapor pressure) and the meteorological properties (temperature, wind speed) play a more important role than the soil adsorption coefficients which would be more significant in the case of pesticides mixed in with the soil.11 So on a windy day, the spray drift can travel farther, reaching more people who are not supposed to be sprayed. The same Washington study found that children are at a higher risk to the adverse effects of toxins by inhalation because they have a higher inhalation rate to body weight than adults and they may have comparatively immature detoxification systems12. Results demonstrate that post-spray volatilization could be a potentially high percentage of inhalation exposure at times when people do not anticipate that there will be a risk of exposure, i.e. after the spray is done. This has implications in agricultural communities, where children are allowed to play outside immediately after spraying while under the assumption that probabilities of exposure are minimal once the spraying is over. Furthermore, results demonstrate that post-spray volatilization could be a potentially high percentage of inhalation exposure at times when people do not anticipate that there will be a risk of exposure, i.e. after the spray is done. This has implications in agricultural communities, where children are allowed to play outside immediately after spraying while under the assumption that probabilities of exposure are minimal once the spraying is over. 13

a) Variable, including atmospheric conditions, which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant; b) The other types of air pollutants which may interact with such pollutant to produce an adverse effect on public health or welfare; and c) The kind and extent of all identifiable effects on public health or welfare which may be expected from presence of such pollutant in the ambient air, in varying quantities. The Department shall base such ambient air quality standards on World Health Organization (WHO) standards, but shall not be limited to nor be less stringent than such standards.
9

US EPA. 1992 (March 2). Ethylene bisdithiocarbamates (EBDCs); Notice of intent to cancel and conclusion of Special Review. Federal Register 57(41):7434-7530. US GAO, Washington, DC
10

Morgan, D. P. 1982 (Jan.). Recognition and management of pesticide poisonings. Third edition. Washington, DC: U.S. Environmental Protection Agency. U.S. Government Printing Office.
11

The Washington aerial spray drift study: assessment of off-target organophosphorus insecticide atmospheric movement by plant surface volatilization by Jaya Ramaprasad, Ming-Yi Tsai, Kai Elgethun, Vincent R. Hebert, Allan Felsot, Michael G. Yost, Richard A. Fenske. Accepted 25 April 2004. Atmospheric environment 38 (2004) 5703-5713.
12

id, at 5704. id, at 5710.

13

The CA cannot be seriously saying that these things are to give way to the economic convenience of the plantation companies.

V. The Honorable Court of Appeals grievously erred in holding that the ordinance violates the equal protection clause despite the substantial distinctions between aerial spraying and the other methods of spraying. Explaining the nature of the equal protection guarantee, the Supreme Court in Ichong v. Hernandez (101 Phil 115, 1957) said: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either [by] the object to which it is directed or by [the] territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable. grounds exist for making a distinction between those who fall within such class and those who do not. To withstand the charge of constitutional infirmity on the ground of violation of the equal protection clause, the following requisites of valid classification exemplified by the Court as early as People vs. Cayat (68 Phil. 12, 1939), must be observed. Classification, to be valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class Foregoing doctrines considered, it is clear that the ordinance is not constitutionally infirm. Of all the methods of spraying, truck mounted spraying, manual or backpack spraying, sprinkler spraying, among others, aerial spraying is the most dangerous in the sense as the unstable wind directions particularly in the City of Davao carry these chemicals hitting unintended targets (humans, animals and plants alike) in nearby communities, water sheds and other water resources. With this in mind, the intended ban is germane to the purpose of the law, which is to protect the citizens as well as the environment of Davao City. In responding to this point, respondents argue that the ordinance does not consider the possibility that there are times that only water, vitamins and minerals are sprayed to the banana plantations. In short, not all forms and substances sprayed are harmful. This argument deserves scant consideration. It even highlights our point with respect to the substantial distinction with the various methods from a regulatory standpoint. From a regulatory standpoint, it is not administratively feasible to keep track of and police every spraying activity conducted by the banana planters. To insinuate that local government officials should be stationed at each and every banana plantation to chemically examine each and every spray component is absurd. Besides, the consequences of pesticide use on humans and the environment oftentimes take too long to manifest, thus making it difficult to assure public safety by sheer deployment of monitoring teams. Worth reiterating in this regard is the Precautionary Principle raised in the various pleadings of intervenors, which urges governmental action to immediately address health threats despite the absence or lack of conclusive scientific proof.

VI. The Honorable Court of Appeals erred in concluding that the Buffer zone implemented under Section 6 of the Ordinance is void for being an unlawful taking without due process when in fact the same is justifiable as a police power measure under the Local Government Code as well as Rules promulgated by executive agencies such as the DENR, determination of which, are entitled to deference. The dissent of Justice Borja sheds light on this issue: It will be noted that buffer zones have already been imposed by the Department of Environment and Natural Resources as a condition to the operation of appellants plantation. Section 6 of the Ordinance merely echoes that requirement. xxx The 30-meter buffer zone is related to the issue of air pollution. The Ordinance does not ban the ground spraying of pesticides. But it will be noted that appellants own evidence establishes the phenomenon of spray drift even in the case of manual spraying. The buffer zone serves to insulate neighboring residents from the drift from manual spraying. In this context, the size or area of the plantation is of no moment. The width of the buffer zone is dictated not by the size of the plantation but by the extent of the drift.

VII. Finally, the Honorable Court failed to appreciate the long-term effects of aerial spraying on climate change, the continued disregard of which, would amount to a violation of our commitments under Montreal Protocol on Substances that Deplete the Ozone Layer

The United States Department of Agriculture Research Report when viewed together with recent findings of US government scientists14 argue further against aerial spraying as a specific method for spraying pesticides. If it is accepted that pesticides deplete the ozone, the use of aerial spraying (which as noted in the US Department of Agriculture report has the effect of converting the chemicals into droplets, which are absorbed faster by the atmosphere) would make ozone depletion run at a faster rate. This fact it is submitted could amount to a violation of our commitment under the Montreal Protocol on Substances that Deplete the Ozone because we are not in effect moving towards a reduction of use of chemicals, which deplete the Ozone. The Protocol clearly states the objectives of said Agreement, which will be negated by the CA decision to continue the allowance of aerial spraying: The Parties to this Protocol, Being Parties to the Vienna Convention for the Protection of the Ozone Layer, Mindful of their obligation under that Convention to take appropriate measures to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer, Recognizing that world-wide emissions of certain substances can significantly deplete and otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment, Conscious of the potential climatic effects of emissions of these substances, Aware that measures taken to protect the ozone layer from depletion should be based on relevant scientific knowledge, taking into account technical and economic considerations, Determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge, taking into account technical and economic considerations and bearing in mind the developmental needs of developing countries, Acknowledging that special provision is required to meet the needs of developing countries, including the provision of additional financial resources and access to relevant technologies, bearing in mind that the magnitude of funds necessary is predictable, and the funds can be expected to make a substantial difference in the worlds ability to address the scientifically established problem of ozone depletion and its harmful effects,The Montreal Protocol on Substances that Deplete the Ozone Layer

To appreciate the linkages proffered in this argument, the New York Times Report is quoted here in full:

14

Andrew Revkin. Study Finds Atmospheric Decline in Pesticide Harmful to Ozone New York Times. August 17, 2003

Government scientists have measured a significant drop in atmospheric levels of methyl bromide, a versatile pesticide that is being phased out of use because it damages the planet's protective ozone layer. The scientists say the drop, 13 percent since 1998, is attributable to mandatory curbs on the chemical under the Montreal Protocol, a 1987 treaty aimed at restoring the layer, which blocks ultraviolet radiation that could otherwise raise cancer rates and harm ecosystems. The researchers, from the National Oceanic and Atmospheric Administration, describe the findings in yesterday's issue of the journal Geophysical Research Letters. Methyl bromide, while less common than Freon and other restricted ozonedamaging substances, breaks down in the air and releases bromine, which disperses into the stratosphere and vigorously attacks ozone molecules. But for decades methyl bromide has also been a popular, cheap means of sterilizing soils, grain silos and shipments of perishable goods. Environmentalists welcomed the new findings but expressed concern about recent proposals by the United States and other countries to continue and expand certain uses of methyl bromide past 2005, when, under the Montreal pact, a ban is to take effect in industrialized countries This year the Bush administration is seeking exemptions to the ban on behalf of dozens of strawberry and tomato farmers, golf-course owners and other users of methyl bromide who say no inexpensive alternatives exist. Federal agriculture officials also want to expand its use in fumigating imported wood packaging and shipping pallets that may contain Asian longhorn beetles or other pests. But David D. Doniger, a policy director for the Natural Resources Defense Council, said the exemptions were unnecessary and would cause a rise in methyl bromide use after a steady drop. A variety of pesticides are listed by the federal government as substitutes for methyl bromide, Dr. Doniger said, adding that fumigation of imported goods could be ended if shippers were required to heat wood to kill pests or switch to other kinds of packaging. The new study projects continued steep declines in methyl bromide in the air as long as use of the chemical continues to drop. Those projections do not take into account the possibility of substantial use under exemptions to the Montreal treaty, said Dr. Stephen A. Montzka, the government chemist who led the study. "Without continued worldwide adherence to the restrictions outlined in the protocol," Dr. Montzka said, "these trends could slow and delay the recovery of stratospheric ozone."

SAN JUAN AND FRANCISO-LAO LAW OFFICE Counsel for the City of Davao