Regulatory capture vs Masungi Geopark project

“REGULATORY capture” is a political-science term, which its critics say, however, is merely a polite term for a specific instance of what we commonly refer to as “graft and corruption.”

It refers to the oh-so-common phenomenon of capitalists co-opting regulators — whether bribes are involved or not — to the extent of bending the rules and making the state agencies in charge of implementing regulations inutile and servile to the will of capitalists.

Officials — crooked or just sharing the capitalists’ ideology — mislead their superiors, divert the issue and delay action to protect the interests of their patrons.

There are strong indications that such regulatory capture is at work in the case of the Masungi Georeserve in Tanay, Rizal, in the southern Sierra Madre range, with the Department of Environment and Natural Resources (DENR) as the target of the “capture.”

The conservation project is named as such because it involves conserving 3,000 hectares of forest that centers on the limestone formation called Masungi Rock.

President Rodrigo Duterte demonstrated his political will early in his term when he backed in 2017 the Masungi Georeserve managed by the Masungi Geopark Foundation, which his then environment secretary, the well-known environmentalist, the late Gina Lopez, had been championing.

In five years, the project rescued from illegal activities around 2,000 hectares of land and thousands of mature Benguet pine trees planted by the first Marcos government in the 1970s. Safe from poachers and now under strict protection, young pine tree saplings are growing and thriving near their towering mother trees.

In danger

However, these rescued forests and pine trees are once again in danger. Three quarrying companies are claiming that their mineral production sharing agreements (MPSAs) awarded 24 years ago over 1,300 hectares of the protected and conserved areas are still valid. The Masungi Geopark Foundations claim these MPSAs are de facto license to quarry, which would damage the Masungi Georeserve. Two of them, Rapid City and Quarry Rock, allegedly insist on quarrying the watershed and wildlife sanctuary.

It is shameful, and totally beyond his competence for DENR bureaucrat Dondi Sarmiento, director of the Mines and Geosciences Bureau’s Calabarzon office, to dismiss the Masungi Geopark Foundation’s opposition to the quarrying on the grounds, he says, that the Constitution stipulates that “private property shall not be taken for public use without just compensation.” He claims the MPSAs were issued long before the Masungi conservation project.

This bureaucrat doesn’t know what he is talking about. His expertise involves rocks not laws: He is not a lawyer but a geologist. Unless he was asked to immediately issue a decision in favor of the quarrying firms, he should have referred the matter to the DENR’s huge legal department, or even to the solicitor general, especially since the Masungi Geopark was a project of Duterte himself, and the past two DENR secretaries, Lopez and her successor, Roy Cimatu. Or perhaps he is thinking that Duterte is on his way out anyway.

Reading Sarmiento’s letter to the Masungi Foundation, I am starting to doubt if he is competent in his own field, geology, since he declared that quarrying in Masungi will only bring “temporary disturbance to the landscape since the quarries will have rehabilitation plans anyway.” In a letter to another columnist, Sarmiento even said, rather atrociously, I think: “With or without quarrying in Rizal, flooding within the low-lying areas of the Marikina River Basin will remain as such a natural hazard.”

De facto PR

Sarmiento even appears to have became the de facto PR for the quarrying firms by claiming in his letter: “The mining and quarrying operations in the province of Rizal are the key producers in the country of primary components of construction materials for the development of buildings, bridges, houses and schools, health centers, etc., that are essential for the Build, Build, Build program of this administration.” Huh? Ban quarrying, and you sabotage the BBB program? Why doesn’t Sarmiento stick to his job description, and forget what would be the problems of the DPWH and other departments.

Sarmiento should read the report, written by five geologists commissioned by the National Museum of the Philippines chairperson Luli Arroyo-Bernas (former President Gloria Macapagal Arroyo’s daughter), that warned of the consequences of quarrying to Masungi and to the Marikina Valley:

The report warned: “Activities such as forestry, agricultural activities, land clearance, quarrying, waste disposal, or other landfill and other developmental activities, if there are any, in the vicinity of the geopark may not cause direct destruction in the geopark itself, but may still disrupt the geological systems around and can have expensive consequences.”

A 2017 World Bank report also debunks Sarmiento’s preposterous claims. In a study made in the Upper Marikina Watershed, it concluded that “higher forest cover can help reduce the volume of floodwater generated in a watershed by 27 percent to 47percent during the three wettest months of the year… Forests can help reduce the potential flooding impacts of heavy rainstorms and typhoons by increasing the time difference between peak rainfall and peak discharge by two to seven hours, and reducing the peak discharge by 20 percent to 32 percent.”

Cancelation

Actually, former Environment secretary Roy Cimatu had announced the cancellation of these MPSAs as early as March 2020 for being inside protected areas and a watershed. Section 18 of RA (Republic Act) 11038, which amended Section 20 of RA 7586 reinforced mining as a prohibited act in protected areas: “… the following acts are prohibited within protected areas:…p) Undertaking mineral exploration or extraction within the protected area; q) Engaging in commercial or large-scale quarrying within the protected area.”

The Philippine Mining Act of 1995 itself bans mining inside national parks and proclaimed watershed reserves: “Mineral agreement or financial or technical assistance agreement applications shall not be allowed in… (f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law.”

If quarrying in Masungi is contrary to the law, then why is the DENR still taking the MPSAs in Masungi as still valid, years after Cimatu’s announcement?

The law is clear that protected areas and proclaimed watershed reserves are off-limits to quarries. Agreements that are against the law cannot be condoned, especially if they endanger people’s lives. Even private rights, if any, cannot supersede the prohibitions set by law.

Show cause

Actually, a “show cause order” had been issued to the three quarrying companies in April 2021, informing them that they had committed “gross violations constituting breach of their contracts.” These breaches, including not being able to commence extraction for some 24 years, are grounds for cancellation of their MPSAs. More than one year after these show cause orders were issued, the MGB Central Office has yet to file a formal recommendation to the DENR head. Hence, no DENR decision to cancel the MPSAs has been made.

In April 2022, acting Environment Secretary Jim Sampulna held a press conference and issued a “suspension” order of the “activities” of the quarrying companies. Why doesn’t the DENR just implement the regulations and the law, that the MPSAs should be canceled?

Mayors of the municipalities near Rizal who want to be sure no quarrying-created floods inundate their areas have joined the call for the immediate cancellation of the MPSAs, since deforestation in the Upper Marikina Watershed, a portion of which is included in the Masungi Geopark Project, is one of the many factors that had generated disastrous floods in these downstream cities.

Environment officials should be the first and staunchest defenders of our natural environment. Sadly, as the experience in Masungi shows, they behave at worst, more like defenders of those who threaten the environment, or at best bureaucrats shaking in their boots when they are sued by powerful companies for implementing environmental regulations.

For all the DENR’s blah-blah in its attempt to wiggle out of the obvious need to cancel these quarrying firms’ permits, what its officials forget is the following: In case of doubt, it should side with those seeking to protect the environment, since once damaged, it will take generations to repair. For rich companies, foregone revenues from quarrying will just be a loss they can easily recover.

There is a fundamental reason why it is called the “Department of the Environment and Natural Resources,” and not the “Department for Mining and Other Extractive Industries.” That is also the reason why an environmentalist was appointed to head it and then a military man programmed to enforce the rules, and not an executive of a mining firm.

These DENR bureaucrats should realize that.

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Regulatory capture vs Masungi Geopark project
Source: Breaking News PH