By: Atty. Gregorio B. Austral, CPA
When the Rains Disappear, the Law Speaks
El Niño is not merely a weather story; it is also a legal and governance challenge. Prolonged heat and below-normal rainfall can reduce water supplies, affect agriculture and commerce, threaten public health, and create disputes over water access and use. The Water Code recognizes that water users must bear the diminution of water supply caused by natural causes or force majeure. (The Water Code of the Philippines (1976))
The State’s response must therefore be organized and proactive. DILG Memorandum Circular No. 2023-065 directs local chief executives to curb illegal connections, encourage prudent water use, update El Niño contingency plans, coordinate with national agencies, and stockpile relief goods. It also allows water utilities to undertake emergency leak repairs before securing excavation permits, provided the permits are obtained within a reasonable period. (Memorandum Circular No. 2023-065 (2023))
These measures are reinforced by DILG Memorandum Circular No. 2019-64, which calls for public information campaigns, water conservation, rainwater harvesting, leak repairs, and coordination on agriculture and commerce. The Philippine Environment Code likewise requires programs for water conservation and for controlling the damming, diversion, taking, and use of natural water when these affect its quality or availability for other purposes. (Memorandum Circular No. 2019-64 (2019) Philippine Environment Code (1977))
El Niño may also have consequences for private businesses and individuals. Under Article 1174 of the Civil Code, as summarized and applied by the Supreme Court, force majeure may excuse nonperformance when the cause is independent of the debtor’s will, the event is unforeseeable or unavoidable, it makes ordinary performance impossible, and the debtor did not contribute to or aggravate the injury. Thus, a business closure, delivery failure, or personal inability to perform an obligation may be legally excusable only when these conditions are actually established—not simply because El Niño caused inconvenience or financial hardship. (Philippine Realty and Holdings Corporation v. Ley Construction and Development Corporation (2011))
The defense is especially weak when human negligence contributes to the loss. The Supreme Court has held that an act of God must be caused solely by natural forces; when human intervention, neglect, or failure to act contributes to the damage, the event is removed from the strict rules on acts of God. A party that failed to prepare, ignored known risks, or could have prevented or mitigated the loss through reasonable diligence cannot automatically invoke El Niño as a complete defense. (National Power Corporation, et al. v. Court of Appeals, et al. (1992) Remman Enterprises, Inc. v. Court of Appeals, et al. (2000))
The legal lesson is simple: El Niño may be a natural event, but its consequences are shaped by human decisions. Government must plan and respond within its mandate; water users must conserve and obey lawful regulations; and businesses and individuals must document how the drought actually affected performance, while showing that they took reasonable precautions. Scarcity may be beyond anyone’s control, but accountability remains where negligence, waste, or poor preparation makes the hardship worse.