Let Gina remain an advocate, what we need is a good regulator

( I wrote this post in my personal capacity. My views here are solely my own and do not necessarily reflect the views of the institutions where I work.)

I admire Gina Lopez’s passion as an environmentalist, but this is also why she is not right for the position of Department of Environment and Natural Resources (DENR) Secretary. In her zealous drive against mining, she has unilaterally arrogated unto herself powers she doesn’t possess as a Cabinet official, starting with disregarding laws and government policy she disagrees with and then inventing her own.

Lopez wants mining stopped in the country, but forgets that mining is a legitimate activity regulated by the Mining Act. If she has a problem with this policy, she should lobby with Congress to repeal the law, instead of shutting down mines left and right, even those that passed the audit she herself ordered. Or, as other similarly-minded individuals did, she can challenge the constitutionality of the Mining Act before the Supreme Court. (Incidentally, one such case filed by Senator Risa Hontiveros is now pending resolution.)

Those who support Lopez should make me understand why it is permissible for her to just ban open pit mining wholesale (but notably excluding quarrying which her family is into) when the Mining Act expressly allows this method of extraction of minerals. With just this one order (that was not subjected to consultations with stakeholders, contrary to DENR practice), she has exposed the Philippine government to arbitration losses to reach billions of dollars for what essentially amounts to expropriation of investment without payment of just compensation.

Her actions also signal to foreign investors that the Philippine government’s regulatory framework is unstable and unpredictable, that the rules of the game can change midstream, and that doing business in the Philippines is too risky and therefore not a good idea.

Lopez’s supporters should also justify why it was okay for her to cancel mining contracts for purportedly being located in watershed areas when the DENR’s own maps show that these mines are NOT within proclaimed watershed forest reserves or critical watersheds and thus not closed to mining. Incidentally, these DENR maps DISAPPEARED from the DENR website shortly after Gina’s Valentine’s Day gift to 75 mines of threat of cancellation.

I get that there is an urgent need to protect the environment; that abuses happen; and that our environmental laws must be enforced.

Yes, irresponsible miners should be made to pay and should be shut down. But for the DENR Secretary to deliberately flout current law and policy and justify it as love for the Philippines and the poor is the same unacceptable explanation for extrajudicial killings (EJKs). The ends do not justify the means. We are governed by the rule of law, and Lopez is not the law.

There are environmentalists who respect the law and are willing to work within its confines. They love the country and the poor no less than Lopez but abide by the rules. I hope one of them next leads DENR. Let Lopez remain an advocate; what we need is a good regulator. – Rappler.com

Joan de Venecia is a professor at the University of the Philippines College of Law and is the general counsel of a mining company that passed the DENR’s recent audit.