To Save the Philippines’ Forests, He Sued for Future Generations

This July marks the 30th anniversary of a legal decision in the Philippines that has reverberated far beyond those shores. In 1993, a young attorney named Antonio Oposa sued the Philippine Department of the Environment and Natural Resources and its secretary, “Jun” Factoran, to halt logging in the nation’s vanishing old-growth forests. The remarkable aspect of the case is that he sued on behalf of generations as yet unborn.

The key holding of Minors Oposa vs. Factoran is now known as the Oposa Doctrine. It grants current generations legal standing to bring actions on behalf of future generations with respect to environmental rights.

Joining John and Tracie to talk about his famous case is lawyer and environmentalist Antonio Oposa. Also joining us is his longtime friend Erik Jensen, formerly with The Asia Foundation in Manila and now at Stanford Law School, who had a first-hand view of the event.

Transcript

Tony Oposa (00:00):

For me, it was pure common sense. The children, and people who will come after them, they deserve to have water, they deserve to have land to grow their food, and they deserve to breathe air. I don't even call it a legal theory, it's common sense.

Tracie Yang (00:18):

Does the state have obligations to people who don't yet exist? Can those people sue? Revisiting a celebrated lawsuit today on InAsia, from The Asia Foundation. I'm Tracie Yang.

John Rieger (00:29):

And I'm John Rieger. This July marks the 30th anniversary of a legal decision in the Philippines that has reverberated far beyond those shores. In 1993, a young attorney named Antonio Oposa sued the Philippine Department of the Environment and Natural Resources, and its Secretary Jun Factoran to halt logging in the nation's vanishing old growth forests. A remarkable aspect of the case is that he sued on behalf of generations as yet unborn.

Tracie Yang (00:56):

The key holding of Minors Oposa versus Factoran is now known as the Oposa Doctrine. It grants current generation's legal standing to bring actions on behalf of future generations with respect to environmental rights.

John Rieger (01:09):

Joining us today to talk about his famous case is lawyer and environmentalist Antonio Oposa. Also joining us is his longtime friend, Erik Jensen, formerly with the Asia Foundation in Manila, and now at Stanford Law School. Tony Oposa and Erik Jensen, welcome to In Asia.

Erik Jensen (01:25):

Thank you. It's great to be here.

Tony Oposa (01:26):

Thank you Tracie, John Rieger. And thank you to the Asia Foundation and to my dear friend Erik.

John Rieger (01:32):

So Tony and Erik, you know each other so well. Set the stage for us. What was happening to the Philippines old growth forests when Tony decided to sue?

Tony Oposa (01:42):

Yes. The land area of the Philippines is 30 million hectares. And according to the law, at least 50%, half, must be set aside as a forest. Yet in 1988, there were only 800,000 hectares left of old growth forests and government was cutting it at the rate of 120,000 hectares per year. My son was then three years old. By the time this guy gets to 10 years old, there will be no more forest, there will be no more water. Can you imagine? There were 800,000 hectares left of old growth forest and government granted logging concessions to 5 million hectares.

John Rieger (02:28):

That doesn't really add up.

Tony Oposa (02:29):

Yeah. That doesn't add up. That doesn't work. So I said, "How can I tell this story?" So I had this crazy dream. I said, "The only way," and I was a new lawyer. I said, "We'll try it in a court of law so it is more orderly, it is more systematic, and I will be able to present the evidence."

Erik Jensen (02:48):

Tony, it might be good to highlight how you're filing a case in court, but there are tremendous and powerful political and economic forces on the other side.

Tony Oposa (03:02):

Yes.

Erik Jensen (03:03):

And assassins can come pretty cheap. You're talking about the equivalent of about $10.

Tony Oposa (03:08):

Yeah.

Erik Jensen (03:09):

To bump you off, my friend. What were you thinking?

Tony Oposa (03:12):

I said, "I don't want to fight them." They're 92 of the biggest companies in the Philippines with the top law firms of the company and I was all alone. So I said, "Well, I will not confront them and I cannot fight a herd of elephants." Instead, I will file a case against the government that issued logging concessions. The real parties in interest who can file a petition is defined in the rules of procedure as those who will suffer irreversible damage and irreparable injury.

John Rieger (03:47):

It's a question of standing, really.

Tony Oposa (03:49):

Yes. Standing. I said so I said, "My children would suffer irreparable damage and irreversible injury. They are the proper parties." It was in their behalf and also for future generations.

John Rieger (04:03):

You included future generations among the plaintiffs?

Tony Oposa (04:07):

Yes. So I sent a demand letter to the Secretary of Environment and I said that," Demand is hereby made upon you to cancel all the logging concessions within the next 15 days. Otherwise plaintiffs whom I'm representing are going to file a case."

John Rieger (04:25):

There was clearly no need to kill you since you are obviously just insane.

Tony Oposa (04:29):

Yes. Anyway, shortly after my secretary said, "Sir, you have a phone call from Secretary Factoran." I said, "Oh. Secretary Factoran." I was so afraid to even answer. I picked up the phone and he said, "Antonio Oposa, yes. The letter that you sent is good. Please go ahead." I could not believe. I almost fell from my chair because I could not believe that instead of cursing at me, he was supportive of me. And this is an example that a word of encouragement can change a person's life.

Tracie Yang (05:06):

Well, I want to turn to Erik really, really quickly. I mean, you were working with the Asia Foundation in the Philippines at the time. What did you think about Tony's novel approach to this case? Was he a genius or a crackpot?

Erik Jensen (05:23):

The idea for the case, I became aware of it through a common friend of ours, Myrna Feliciano, who is a professor at University of Philippines Law school. Myrna had said to me, "I've got this former student of mine who has a crazy legal theory. I think you should meet him and see what you think." So I wandered into Tony's little law office in Makati, and we had a conversation about the case that he was involved in. It was a novel theory, but novel legal theories are part of what advances thinking about the law.

John Rieger (06:03):

Well, on the one hand, it seems obvious that we owe it to our descendants not to destroy the planet. But it also seems strange to say that people who don't exist can have standing in court.

Tony Oposa (06:16):

For me, it was pure common sense. The children, and people who will come after them, they deserve to have water, they deserve to have land to grow their food, and they deserve to breathe air. I don't even call it a legal theory, it's common sense. Remember that during this time, I was the object of ridicule. How crazy could this lawyer be? So when I met Erik, he was quite excited about this crazy case that I filed. And then he told me that the Asia Foundation was organizing the first environmental law conference together with the American Bar Association in Hong Kong.

(06:57):

And Erik said that he was inviting me and he said he would even invite me to give a talk about that case. I said, "What? What would they think of me? I mean, they will confirm that I'm crazy." Erik asked me for a short document, and in January, early January, he even called me, "Hey Tony, they like your story. They're making you a plenary speaker."

John Rieger (07:21):

Wow.

Tony Oposa (07:22):

So after my talk, a lady beside me said, "Do you know this Professor Edith Brown Weiss? She came up with a theory called intergenerational responsibility. And she said, 'It's quite wonderful that on one side of the world somebody is thinking about it, and on the other side of the world is somebody actually doing it without them even knowing each other.'" And I was feeling encouraged that after all my crazy idea would have some legitimacy.

Erik Jensen (07:57):

Tony, your case was dismissed. But then what happened? What was the Department of Environment and Natural Resources up to?

Tony Oposa (08:05):

Secretary Factoran used the case as a leverage to stop all logging in the remaining old growth forest. So he was a genius not just of the mind, but he was a genius of the heart.

John Rieger (08:19):

So even though he was named in the lawsuit, it doesn't sound like he was actually an opponent at heart.

Tony Oposa (08:25):

Yes. That's why I always emphasize now that please do not call it Oposa versus Factoran. It was Oposa with Factoran.

Erik Jensen (08:34):

And I think it also illustrates the connections of law, bureaucracy, and politics. Jun did some lawmaking based on a case that had been dismissed in court.

Tony Oposa (08:43):

Yes. During that time, that was 1991, 1992, their term in office was winding up. But what he did was together with like-hearted citizens, he drafted the Integrated Protected Areas law of the Philippines. And there is a provision in that law that says the remaining old growth forest of the Philippines will be the initial component of the protected areas of the Philippines. I said, "Wow. Policy-wise, I already won the case." But the court dismissed the case not recognizing the right of children and future generations to file this case.

Erik Jensen (09:27):

So you wanted jurisprudential support for your theory on future generations. So what did you do? It was crazy, my friend, but what did you do?

Tony Oposa (09:37):

Mark Twain said, "The secret of success is ignorance and confidence." Jun Factoran was very supportive, but the Office of the Solicitor General filed a motion to dismiss. And crazy as am, I filed a case directly in the Supreme Court, an appeal on the question of law and question of principle.

Tracie Yang (09:58):

Well, what pushed you to make that decision given that it was so hard for you?

Tony Oposa (10:03):

Because I was trying to make a point that these kids have the right because they will be the ones to suffer.

Erik Jensen (10:10):

So, Tony, I want to back up in the story because this legal process, it went from the lower court. You skipped the Court of Appeal, ignoring the Civil Procedure Act, and tell the story about what happened when you filed in the Supreme Court.

Tony Oposa (10:25):

So I filed the case in the Supreme Court and a question of law and a question of principle and a question of philosophy. And it happened to land on the table of a man who is a son of the soil, Hilario Davide, Jr. He was the youngest justice then. He was only in his early 60s and it's a wonderful story of alignment of stars.

Erik Jensen (10:50):

So he's 61 years old, the youngest member of the court, the older ones are wondering what the younger one might do and whether he is got the chops to be a Supreme Court Justice.

Tony Oposa (11:02):

That's a wonderful way of putting it. He was later Chief Justice Davide. The case landed on the table of a more senior justice and said, "Let's see what this young guy can do about this." So finally the Supreme Court rendered decision. And it is so beautiful, I just reread it again. And it is really written not by the mind, nor by the hands, it is written by the heart.

Erik Jensen (11:31):

Do you have that passage before you

Tony Oposa (11:33):

Yes. So technically I lost the decision because the decision said I had to refile the case against all the logging companies, which of course I did not do. But the Supreme Court said, on the question do the children and future generations, do they have a right to a safe, clean, and healthy environment? The Supreme Court said yes. The Solicitor General argued that it's not in the Bill of Rights, so you cannot enforce it. And here is what the Supreme Court said, "Such a right belongs to a different category altogether, for it concerns nothing less than self-preservation and self-perpetuation." That was my philosophical argument. "The advancement of the right of self-preservation and self-perpetuation may even be said to predate all governments and constitutions." I didn't say that. It was Justice Davide who said that. And he said, "As a matter of fact, these basic rights did not even be written in the Constitution for they are assumed to exist from the inception of humankind." Wow.

John Rieger (12:57):

Wow, indeed.

Erik Jensen (12:58):

That's an articulation of natural law.

John Rieger (13:01):

This sounds like a pretty remarkable and sweeping victory. Would you say that the decision in Minors Oposa versus Factoran has had an impact beyond the Philippines?

Erik Jensen (13:13):

Neighboring jurisdictions, I mean, Tony was just in Malaysia. He's been throughout Asia talking about this case. This is how ideas about law and legal reform have been evolving since pre-Roman times. The ideas cross borders and they percolate and then they take the good ideas and try to advance them in a local context. So it would surprise me if not only this case, but Tony's advocacy throughout Asia, has not affected the perspectives on environmental law.

Tracie Yang (13:46):

So tell us about the amicus brief that you will be submitting to the International Court of Justice.

Tony Oposa (13:53):

Let me tell you a story about this. The entire world facing the climate crisis, how can we tell the story, in the highest court of the world, that states have a duty to present and future generations? I started the movement to gather young people around the world, including Pacific Island nations and 130 countries all over the world, filed and approved a UN General Assembly Resolution to seek the advisory opinion of the International Court of Justice in the Netherlands, in The Hague, the Peace Palace, under international law in the face of the climate crisis, what are the duties of states to protect present and future generations? So I am going to The Hague write an amicus.

John Rieger (14:46):

A friend of the court.

Tony Oposa (14:46):

It's a friend of the court, yes.

John Rieger (14:49):

Tony, you've written a lovely memoir for Daedalus Magazine in which you note how the skies brightened and the waters cleared when humans were idle during COVID-19. When you look at the impact that humans are having on the earth, do you ever despair?

Tony Oposa (15:08):

Yes and no. Because if you see what is going on with the world now, and with the sole consideration of everybody abusing nature for money, we need to reform the thinking and the mindset and the heartset of human beings. Now, in The Hague, we are not going to write just about the legalistic mumbo jumbo. The question is what are the duties of the states? What can the states do as good fathers of the family of humankind? What can the states do to care for the present and future generations? So we will have a festival of ideas.

John Rieger (15:50):

Antonio Oposa and Erik Jensen, thank you so much for taking the time to be with us today.

Erik Jensen (15:57):

Thank you, John and Tracie.

Tony Oposa (15:58):

Thank you, John. Thank you, Tracy. Thank you Erik.

Erik Jensen (16:02):

See you, Tony.

John Rieger (16:04):

Our show today has an epilogue. Scientists now speak of our era as the Anthropocene, the geological epoch marked by the overwhelming impact of humans. As the UNDP wrote in its 2020 Human Development Report, "We are the first people to live in an age defined by human choice, in which the dominant risk to our survival is ourselves."

Tracie Yang (16:24):

As we celebrate the 30th anniversary of Tony Oposa's legal crusade for future generations, we should also acknowledge how prescient he was.

John Rieger (16:32):

And that's our show for this week. Join us again next time for more people and ideas from the world of international development. Until then, I'm John Rieger.

Tracie Yang (16:40):

And I'm Tracie Yang.

John Rieger (16:42):

Thanks for listening.