For the sake of the planet, a lawyer wins the right to sue on behalf of future generations.
Early one April morning in 2006, in the heart of the Philippine archipelago, a boat approached a small island on the Visayan Sea. Law enforcement agents disembarked, presented search warrants and seized bags of explosive powder and blasting caps used in dynamite fishing—an illegal practice which has destroyed 99 percent of the area’s coral reefs and decimated the fish. They arrested two fishermen from the island, where subsistence fishing is one of the few ways to put food on the table.
Two men who came ashore with the agents addressed the crowd: Elpidio de la Victoria, head of the local Bantay Dagat (or sea patrol), and lawyer Antonio Oposa LL.M. ’97. For several years they had been fighting to stop illegal fishing through a network of volunteers called the Visayan Sea Squadron. That day it was a hard sell, but Oposa spoke to the islanders about how blasting was ultimately destroying their livelihood.
Two days later de la Victoria was shot and killed outside his home.
Oposa had reason to fear for his own life. But he was not unaccustomed to taking risks for the environment. In 1990, he filed a lawsuit that was as audacious and perhaps as risky as any predawn raid—typical of a man whose career has been marked by daring, idealism and heart. Some believe the suit, known as Minors Oposa v. Factoran, could eventually lead to a sea change in environmental law around the world.
“It’s not our world to abuse”
Raised on the island of Cebu in the Visayas, Oposa says he started life as “a rich kid” full of energy and mischief but with little direction. He attended law school at the University of the Philippines but hated law firm practice. It was his wife who urged him to find a specialty.
He knew he loved nature—especially the ocean. His grandfather who raised him was a harbor pilot in Cebu and owned a stretch of white sand on neighboring Bantayan Island, where Oposa had spent some of his happiest moments. But at that time, “there was no such animal as environmental law in the Philippines,” he says, and the fish weren’t going to pay his fees.
He consulted former professors at the University of the Philippines, including Myrna Feliciano LL.M. ’80, who would later become one of the first to teach environmental law in the country. (Oposa says she has helped him at every step of his career.) Feliciano, who had studied land-use planning with Charles Haar ’48 when she was earning her master’s at HLS, gave Oposa readings that opened up new worlds. He began to agitate, writing letters and holding meetings in Cebu. She helped him get a scholarship to spend a summer at an institute in Oslo, where he was exposed to an active environmental movement and brought home the nascent idea that environmental policy should protect the earth for generations to come. In Cebu, people treated him like a hippie with a ponytail, he says, but in Norway, “I saw that the things I was thinking about were also being thought about by other people.” Soon afterward he uprooted his family and moved to Manila, where environmental activism was beginning to percolate.
Around that time he learned that only 4 percent of the Philippines’ virgin forest remained and the government had granted logging concessions for five times more forested area than still existed. The consequences were already apparent: floods, displacement of indigenous people, loss of habitats to animals and plants. He became obsessed with the idea that his country’s patrimony was being squandered through chicanery to enrich the few. He had young children—what sort of world would he be leaving them?
He sued, demanding the cancellation of all existing logging concessions and an injunction against new ones. He named his three children as plaintiffs, along with 41 others and “generations unborn.” He knew that if he made the powerful logging companies the defendants, they would flood him with motions that would drain the resources of a lone attorney. (He also knew that they could hire someone to kill him off.) Instead he sued the head of the newly formed Department of the Environment, Fulgencio Factoran LL.M. ’69, who he believed was sympathetic to his cause. Three years earlier a new constitution had been enacted, which included a “right to a balanced and healthful ecology.” Oposa was eager to test the meaning of these words.
“Unfortunately or fortunately,” he says, the trial court dismissed the case. So without any money, without any support from other lawyers (“When I lost, even my shadow left me”), he appealed. “I went all the way to the Supreme Court on a question of law and philosophy.”
The solicitor general questioned Oposa’s right to sue on behalf of generations unborn. But by then, Oposa had come across the work of Edith Brown Weiss ’66, a Georgetown law professor who developed the concept of “intergenerational equity” and explored the moral, philosophical and legal implications of the idea that the rights and interests of future generations should be taken into account in decisions today. He sent her treatise to the court.
It ruled for Oposa on every issue.
International environmental lawyers quickly picked up on the ruling. Weiss recalls hearing about it shortly after it came down. “I was extremely pleased,” she says. “The landmark decision demonstrated that the interests of future generations could be protected in court.”
David Hunter ’86, who teaches international environmental law at American University Washington College of Law, says, “The case is widely cited as one of the few—maybe the only case—that has used the principle of intergenerational equity, an important principle on theoretical and policy levels for international environmental lawyers.”
The response in the Philippines was slower. The case was sent back to the lower courts, where Oposa did not pursue it. He didn’t have the resources, and before the Supreme Court ruling, the government had issued an order prohibiting new logging in the remaining virgin forest.
In the end, Oposa believes, what the case did was proffer a reminder. “That’s probably what makes it so popular around the world,” he says. “A crazy son of a gun brought it all the way to the Supreme Court to tell a single sentence: We have a responsibility to future generations. This is not our world to abuse,” he says. “We just borrow it from our children.”
While his case was still pending, Oposa entered into a consultancy for the World Bank focused on illegal logging. He was hired to lead a training program for lawyers and judges, but he believed he could do so much more with the money. After creating a task force of government and law enforcement agencies, he organized a series of raids: “shock and awe at its best,” he says. During one strike, the team targeted a hotbed of illegal logging in the Sierra Madre Mountains. They landed by helicopter, arrested the operators, dismantled the mills. After another raid, the captain of an outrigger carrying virgin timber was arrested. Oposa and a local prosecutor held a probable cause hearing, and the captain was in jail two hours later. The frustration is audible when Oposa recalls how the task force ended: “We were that close to breaking the back of illegal logging,” he says, when his contact in government was replaced “and the whole effort collapsed.”
He was able to reflect on that experience and more during the year he spent at HLS earning his LL.M. He wrote his final paper on citizens’ suits, stemming from his experience with Minors Oposa. When he returned to the Philippines, the paper was incorporated into the citizen suit provision of his nation’s Clean Air Act, which was then being drafted.
It was shortly after his return from Cambridge that he decided to give up his law practice—“the craziest thing that you can think of when you have the Harvard LL.M. at the end of your name,” he says. But for Oposa it made perfect sense. From then on, he decided, his clients would be the land and the sea. He sold some property, started a non-profit to support his advocacy—The Law of Nature Foundation—and began to write. He wanted to put his years of legal research and experience with the rough-and-tumble world of enforcement into words to help others to take up the cause. Two books came out of it: “A Legal Arsenal for the Philippine Environment” and “The Laws of Nature and Other Stories.”
While he was working on the books, he holed up in a family beach house on Bantayan Island—about a half-day’s journey by plane, car and ferry from Manila. The surrounding waters have been recognized as a biodiversity hotspot, with more than 500 varieties of coral and some 12,000 species of fish. But over the past 50 years dynamite and cyanide have taken their toll, as has overfishing. The fine nets used by some commercial fishermen trap juvenile fish and other marine life—along with the target catch—and are weighed down by metal blocks that crush the coral.
On Bantayan, Oposa started the Visayan Sea Squadron—with de la Victoria and a host of others, including politicians, teachers, attorneys, scuba divers, law enforcement agents and hundreds of local fishermen. They spoke to subsistence fishermen and their families on the effects of blasting. They launched community-run sea patrols, led raids on producers of explosives and on commercial fishermen. One raid—aboard a Navy gunboat—ended in the arrest and jailing of three of a nearby city’s most powerful commercial fishing boat operators, after Oposa and his team served outstanding warrants that the local police were not executing.
Soon Oposa’s beach house became headquarters for operations. Believing that people are most likely to protect what they understand and love, he began hosting sessions for local children, teachers and community organizers on marine ecology, solid waste management and environmental ethics. When four fishermen were arrested for blast fishing, Oposa cut them a deal: Rather than serving time, the men served as fish wardens. They are now part of the team, he says, and “among the fiercest advocates for marine conservation.”
Fueling a Movement
After de la Victoria’s murder, Oposa was grateful for the outpouring of support from the international community, including a letter sent by Professor William Alford ’77 and other HLS faculty to the president of the Philippines asking for heightened protection. But he felt a renewed sense of urgency. So when his friend Nicholas Robinson, co-director of Pace Law School’s Center for Environmental Legal Studies, gave Oposa $5,000 to use for his security, Oposa had other ideas: It became seed money to build a structure that could better house the activism and education efforts on Bantayan Island: School of the SEAs (Sea and Earth Advocates). Completed last year, the building is made of nipa and bamboo in a traditional Filipino design and powered by renewable energy. Oposa has also developed a marine sanctuary, a small one, he says—less than 40 acres—but he is proud to see the fish jumping again. This spring, he launched an organic farm and market, where families of local fishermen can sell legally caught fish.
Since the murder, enforcement operations have continued, but Oposa’s friends have convinced him to stay off the gunboats. When the squadron made a raid in February—seizing blasting powder from the home of a public official under investigation for links to organized crime—Oposa took their advice. (Before de la Victoria’s death, they both had received threats. A local police officer has been arrested for pulling the trigger, but it’s widely believed he was hired to do the job and no progress has been reported on the investigation.) When asked if he still feels at risk, Oposa says it’s probably never going to stop, because what he does threatens too many people. He often pays for the gas in the gunboats and meals for the raiders.
Fueling boats, he says, “costs a bundle.” Oposa and his family live mostly from the revenue from real estate investments from his days of law practice, so he is able to support the Bantayan endeavors through consulting fees—and gifts from a few environmentally minded friends. He has not sought international funding. “It’s a matter of principle,” he says. “Because we destroyed it, let us fix it ourselves.” If someone offers help, Oposa is more than grateful. “But first,” he asks, “come to the island and see what we are doing.”
In 2006, Oposa and his associates undertook the first in a planned series of underwater surveys. He was among the scuba divers who examined the reefs (finding not even 400 square meters intact) and counted target fish species, such as grouper, which had all but disappeared from unprotected sites. The results bolster their arguments for a moratorium on commercial fishing in local waters.
At 53, Oposa is still an optimist—dazzled by the beauty of the country he happened to be born in—and a man of action, committed to helping others to see the benefits of protecting it. He’s had some effect on the next Oposa generation. His oldest son (first plaintiff in the suit “and most famous Oposa,” his father jokes) will start next year at the University of the Philippines College of Law; his second son has participated in enforcement raids in the Visayas since he was 14. And all his children, he says, are “at least environmentally sensitive,” including his 9-year-old son and his daughter, who brings her own plastic bags to grocery stores and gets funny looks that make her father proud.
Someday soon, Oposa plans to travel to college campuses and environmental law societies around the world, starting in the U.S., to reach more of the next generation. “It’s really the continuation of the Minors case,” he says. Next year, he and others (including Robinson of Pace Law School) are planning a global legal action on climate change, inviting lawyers all over the world to file lawsuits on the same day—“to stir the pot.”
In the meantime, he’s focused on his watery backyard. In May, the director of the Bureau of Fisheries was scheduled to give Oposa his own gunboat: “Too good to turn down,” he says—but hard to keep up. He’s already arranged for it to be maintained in a neighboring town, whose mayor, Alfredo Marañon, inspired the Visayan Sea Squadron and has been a supporter ever since.
The boat will be used for enforcement, but Oposa’s plans are much bigger. “We have the people, the divers, the social organizers, the educators,” he says. “What I want to do is go from town to town, from village to village along the coast and help them organize marine-protected areas. Johnny Appleseed planted seeds of apple. We are trying to plant seeds for marine-protected areas.”
“I have these dreams,” says Oposa. “And somehow or other when I am persistent in my dream, things fall in place.”
“Every generation has a responsibility to the next to preserve that rhythm and harmony”
“Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the ‘rhythm and harmony of nature.’ Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligations to ensure the protection of that right for the generations to come.”
—From the opinion of Associate Justice Hilario G. Davide Jr., writing for the Republic of the Philippines Supreme Court, en banc, July 30, 1993, in Minors Oposa v. Factoran
Editor’s Note: In late June, shortly after this story was filed, a typhoon hammered the Central Philippines, killing hundreds of people. Oposa was in Manila at the time, but he reports that much of Bantayan Island was flooded during the storm, and the School of the Seas collapsed under very strong winds. As he was preparing to travel to the island to assess the damage and at least begin to clean up, he couldn’t foresee how he could manage to rebuild the structure that had taken much of his savings. “It leaves a big hollow in my heart,” he wrote. Yet he adds that he considers himself lucky. “It could have been worse, much worse.”