DE LA CRUZ v. MERALCO CA-G.R. SP NO. 116742-UDK Jan.
20, MERALCO
2011
DECISION
CRUZ, S. C., J.:
This treats of a Petition for Writ of Kalikasan (with prayer for the
issuance of a temporary environmental protection order) filed by
Gemma C. Dela Cruz, et al. (hereafter “petitioners”) against Manila
Electric Company et al., (hereafter “respondents”) under Rule 7 of
Administrative Matter No. 09-6-8-SC otherwise known as The Rules
of Procedure for Environmental Cases1 following the installation
and
subsequent energization of low-frequency power lines of the Manila
Electric Company (hereafter “MERALCO”) along 10th, 12th and
27th
Streets of Barangay 183, Zone 20, Pasay City and in certain areas
in
Magallanes Village in Makati City.
Petitioners aver that on July 13, 2009, Cesar Toledanes,
(hereafter “Toledanes”) the Chairman of Barangay 183, issued a
Working Permit Clearance2 in favor of MERALCO for the installation
of poles and 115 kilovolts (KV) sub-transmission lines along 10 th
and
12th Streets of the barangay without prior approval of and
authority
from the Barangay Council or consultation with the residents of the
Barangay.
Belatedly, on September 2, 2009, the Barangay Council
composed of Toledanes, Ruth Cortez, Ricardo Dimaano, Leonardo
Abad, Normita Castillo and Amante Cacho issued Barangay
Resolution No. 40-S-20093 authorizing Toledanes to issue a permit
in
favor of MERALCO to install high voltage power lines and poles
along
10th and 12th Streets of Barangay 183. Pursuant thereto,
MERALCO
began constructing posts along the foregoing streets including the
27th. The thirty-foot high poles hold transmission lines that supply
approximately one hundred fifteen (115) KV of electricity to the
Ninoy
Aquino International Airport III (NAIA 3). Unfortunately, none of the
respondents informed the residents of the proposed installation of
sub-transmission lines. Hence, they were surprised to see
putting up power lines that pass along the perimeter concrete wall
between Barangay 183 and Magallanes Village.
Fearful of their safety, petitioner Gemma Dela Cruz, on behalf
of the other petitioners, appealed to the members of the Barangay
Council to recall the Barangay Working Permit and Resolution No.
40-S-2009 issued in favor of MERALCO. Unheeded, petitioners now
seek the intervention of this Tribunal via Petition for Writ of
Kalikasan
to protect the affected residents from the alleged health risks (e.g.,
cancer, leukemia in children, Alzheimer's disease, headaches and
miscarriages to name a few) of the high-tension wires erected
within
close proximity from their houses.
For its part, MERALCO avers that the supply of electricity to
NAIA 3 was one of its major projects in Pasay City whose full and
efficient operation requires the installation of a power substation
and
115 KV sub-transmission lines in several areas in Metro Manila, one
of which is Barangay 183 in Pasay City. On July 27, 2000, Reynaldo
Gobaton, the Chairperson of Barangay 183, issued a certification 4
stating that he understood the implications of the development of
the
NAIA substation on the surrounding areas and that his constituents
had no objections thereto. Respondent also secured another
certification5 from the barangay in which the latter assured
MERALCO that none of its sectors and leaders have objections to
the
installation of MERALCO's substation, its power transmission lines
and distribution system in their area.
After finally deciding on 10th, 12th and 27th Streets in Barangay
183, (i.e., The first options were Sales Street and Andrew Avenue
which were disapproved, respectively, by the Philippine Air Force
and
the Department of Public Works and Highways) MERALCO
conducted a series of public meetings and consultations with the
affected residents of the Barangay in which it explained the NAIA 3
project while addressing concerns about the residents' health and
safety. Thereafter, respondent proceeded to secure the necessary
permits and compliance certificates6 for the construction and
installation of the 115 KV sub-transmission lines along the
foregoing
thoroughfares.
However, the operations were momentarily stopped on
September 15, 2009 due to the opposition of some residents of
Barangay 183. It resumed on November 23, 2009 but was
suspended
anew following the issuance of a cease-and-desist order dated
December 3, 2009 by the Office of the City Engineer of Pasay City.
On December 4, 2009, on the same day that the parties were
heard in the Office of the City Mayor of Pasay City, a group of
residents of Barangay 183 filed a case of preliminary injunction
and/or mandatory injunction with prayer for a temporary
restraining
order (TRO) before the Regional Trial Court (RTC) of Pasay City,
docketed as SCA No. 09-02222 7 entitled “Evangeline M. Biocarles,
et
al., vs. Manila Electric Company, et al.” The action prayed for the
following reliefs: (a) the suspension of the construction and
installation of the 115 KV sub-transmission lines along 10 th and
12th
Streets in Barangay 183; (b) the nullification of the Barangay
Working
Permit Clearance and the Barangay Resolution No. 40-S-2009; and
(c) the nullification of the permit issued by the Office of the City
Engineer of Pasay City. Without, however, issuing a TRO, the RTC
rendered the prayer for injunctive relief moot and academic.
Amidst the denial of the motion, the residents of Barangay 183
instituted the present action of Writ of Kalikasan pursuant to A.M.
No.
09-6-8-SC (Rules of Procedure for Environmental Cases) against
MIAA, MERALCO and the members of the Barangay Council of
Barangay 183.
To this, respondent MERALCO counters that the petition is
dismissible on three (3) specific grounds: First, petitioners' right to
health, which is why they sought the protective writ for, is not
within
the ambit of the Writ of Kalikasan. According to MERALCO, the
central purpose of the Writ is the protection and advancement of
the
Constitutional right of the people to a balanced and healthful
ecology whereas the petitioners are asking for the protection of
their individual
right to health and not for the protection of the environment
against
the installation of its sub-transmission lines. MERALCO explains
that
the Writ of Kalikasan is designed precisely to protect the
environment
from “potentially exponential nature of large-scale ecological
threats”
and may only be invoked when the acts complained of violate the
people's right to a balanced and healthful ecology and that
damage to
the environment results or is expected to result therefrom. In this
regard, MERALCO believes that the petition fails to state the
ultimate
facts constituting the cause of action of the petitioners against it.
Second, petitioners are guilty of non-forum shopping because
the present action is virtually identical to the injunction case earlier
filed by certain residents of the Barangay 183, especially in terms
of
the issues raised in both actions. While MERALCO acknowledges
the
difference in the nominal identities of the parties involved, it
qualifies
that such divergence may be considered irrelevant in light of the
implication that the petitioning residents in the injunction case are
deemed included as parties in the petition for Writ of Kalikasan.
Third, the installation of its sub-transmission lines is in
compliance with pertinent laws, office permits and certifications
from
government agencies concerned especially the DOH. Moreover, the
“imagined harmful effects” generated by MERALCO's
subtransmission lines have no basis in medical research and
scientific
investigation and data. In support thereof, MERALCO invoked the
data gathered by the World Health Organization (WHO) and the
International Commission on Non-Ionising Radiation Protection
(ICNIRP) which, in sum, dismissed the existence of health hazards
supposedly brought about by extremely low frequency
electromagnetic field (ELF-EMF). MERALCO argues that the WHO
has earlier confirmed that the factors necessary to establish a
cause and-effect link have generally been absent in studies
involving
electromagnetic fields9 and that it still could not confirm, in spite
of
extensive research on the topic, that the exposure to ELF-EMF pose
any danger to health. 10 If any, the health effects of low level
electromagnetic fields are likely to be very small compared to other
health risks that people face on a daily basis. 11
MERALCO also stresses that it has complied with the maximum
tolerable limit of ELF-EMF exposure of 833 mG as set by the WHO
and adopted by the Department of Health (DOH). Knowing these
limits, the DOH certified that MERALCO's power lines emit ELF-EMF
substantially lower than the tolerable 833mG, so much so that the
DOH director for Bureau of Health Devices Technology Agnette
Peralta issued a letter12 dated October 3, 2007, addressed to Dr.
Cesar Encinares, the officer-in-charge/City Health Officer of Pasay
City, assuring the latter that MERALCO has conformed to existing
ICNIRP exposure limits.
On the other hand, MIAA, one of the respondents in this case,
avers that in 2001, the Philippine International Air Terminals Co.,
Inc.
(PIATCO), then operator of the NAIA Terminal 3, applied for electric
service with MERALCO for an estimated load of 30MVA. 13 To
support
NAIA's power supply, a substation has to be constructed beside the
airport terminal plus two (2) sub-transmission lines with ninety-feet
concrete and steel poles along Nichols South Expressway Overpass
Bridge and the bank of the Maricaban Creek including 10 th and
12th
streets in Barangay 183 in Pasay City. Without the sub-transmission
lines, the load capacity of NAIA International Passengers' Terminal
III
would only be 10 mega volt amperes (MVA), which is 20 MVA short
of the estimated total load of 30 MVA necessary for the full
operation
of the terminal.
After the necessary Barangay permits and clearances had
been secured, (e.g., Barangay Working Clearance, Permit from the
City Engineering of Pasay City and three (3) Environmental
Compliance Certificates dated April 6, 2001, October 16, 2002,
April
13, 2007) MERALCO began putting up concrete poles along 10 th
and 12th Streets of Barangay 183. However, the work was later
shelved
owing to the suspension order issued by the City Engineer himself.
It
was later lifted via an injunction order14 from the RTC of Pasay City
dated July 23, 2010. In compliance thereto, MERALCO commenced
and actually completed the installation of the 115 KV lines.
Meanwhile, the MIAA filed a separate petition for injunction
before the RTC of Pasay, docketed as SCA No. R-PSY-10-03913-
CV15 entitled “MIAA vs. The City Government of Pasay, et al.,”
seeking to lift the cease and desist order against MIAA and allow
MERALCO to continue installing its poles and sub-transmission lines
around Barangay 183. On July 23, 2010, the RTC acted favorably on
the petition and granted the issuance of the writ that lifted the
questioned cease and desist order. City Government of Pasay City
forthwith moved for the dissolution of the writ but was instantly
denied
on September 17, 2010.
Following the submission of respondents' Comments, this Court
forthwith scheduled the preliminary conference on December 13,
2010 in which the parties were directed to submit their respective
memoranda and simplify the issues of the petition for a more
comprehensive resolution thereof. Hence, the following important
questions, viz.:
WHETHER OR NOT THE PRESENT PETITION IS THE PROPER
ACTION TO ADDRESS PETITIONERS' HEALTH-RELATED
CONCERNS ABOUT THE CONSTRUCTION, INSTALLATION,
ENERGIZATION AND/OR ACTIVATION OF MERALCO'S POWER LINES;
WHETHER OR NOT THE HIGH-TENSION WIRES POSE DANGER TO
THE ENVIRONMENT AND TO THE LIVES, HEALTH AND PROPERTIES
OF THE RESIDENTS OF
BARANGAY 183 OF PASAY CITY AND MAGALLANES VILLAGE OF
MAKATI CITY;
WHETHER OR NOT THE CONSTRUCTION, INSTALLATION,
ENERGIZATION AND/OR ACTIVATION OF THE HIGH-TENSION WIRES
VIOLATE THE CONSTITUTIONAL RIGHT OF
PETITIONERS TO A BALANCED AND HEALTHFUL ECOLOGY.
In support of the FIRST issue, petitioners argue that the right to
a balanced and healthful ecology which, incidentally, is the basis of
or
benchmark for the promulgation of The Rules of Procedure for
Environmental Cases, 16 is inextricably linked with the
Constitutional
right to health, and thus, both rights should be taken as singular or
relational as opposed to being separates. Hence, the right to health
is
within the coverage of the Rules. To illustrate, petitioners cite
related
cases such as Oposa vs. Factoran17 (on the obligation of the state
to
conserve and protect the environment for future generations) and
Laguna Lake Development Authority vs. Court of Appeals18 (on the
'consonance' between the policy of the state to protect and
promote
the right to health and its duty to protect and advance the right of
the
people to a balanced and healthful ecology).
We are of the opposite view. The coverage of the Rules in
question is plainly stated in the law itself. Thus, Section 2 thereof
provides in no equivocal terms that the Rules shall govern the
procedure in civil, criminal and special civil actions involving the
enforcement or violations of environmental and other related
laws, rules and regulations such as but not limited to the law
governing the Prohibition Against Cutting of Tindalo, Akli, and
Molave
Trees; Revised Forestry Code; Sanitation Code; the Marine Pollution
Decree; the Water Code and a host of related statutes. 19
[emphasis
supplied]
Apparently, the law, specifically Rule 1, Section 3 thereof,
endeavors, among others, to protect and advance the
Constitutional
right of the people to a balanced and healthful ecology. 20 In plain
terms, this Rule translates to policing and effectively preventing
violations of “environmental laws” to preserve not only the
environment from which the people largely benefit themselves but
also the right of the people to continue living in an environment
that is
suited for human habitation. This is precisely why the law itself
explicitly requires the specification or inclusion of the
environmental
law, rule or regulation being violated (or threatened to be violated,
as
the case may be) in the petition for the Writ of Kalikasan. Thus:
“Section 2. Contents of the petition. - The verified
petition shall contain the following:
xxxxxxxxx
(c) The environmental law, rule or regulation violated or
threatened to be violated, the act or omission complained of, and
the environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or
provinces.”21
In addition to Section 2, Section 1, Rule 7 of the Rules requires
that there be a “violation” or, at least, a “threatened violation” of
the
people's constitutional right to a balanced and healthful ecology by
an unlawful act or omission of a public official or employee, or
private
individual or entity which involves an environmental damage of
such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. [emphasis
supplied]
There is no mistaking the scope of the law. The Writ of
Kalikasan should not be confused for anything but as an aim at
preventing or stopping unlawful acts (i.e., one that threatens or
violates the people's right to a balanced and healthful ecology)
that
upset the environment which, in effect, results in the violation of
the
people's right to a balanced and healthful ecology. It relates
primarily
to the protection of the environment under the precept that the
destruction of the environment redounds to the destruction of the
people's life, property and/or health. 22 This is better explained in
the
Rationale of the Rules which, in part, states that:
“The discipline of ecology is based on the interconnectivity
and interdependence between organisms and the elements of the
environment. An appreciation of this link between all elements of
living things and nature would naturally instill a sense of urgency
to
protect our ecosystems. Without such protection, the
endangerment of the ecosystems would correlate to the
endangerment of humankind. Conversely, its protection would
benefit man and his ability to survive and sustain in the world.”
Still, on the basis thereof, this Tribunal cannot rule out the fact
that apart from the environment, health risk is likewise one of the
ills
sought to be prevented by the writ. However, health per se or the
right thereto cannot be sought independently of the environmental
damage brought upon by the unlawful act. Section 1, Rule 7 of the
Rules is clear enough on this. The threat to health must emerge as
a almost exclusively on the assertion that MERALCO's transmission
consequence or offshoot of the magnitude of the environmental
damage which the writ seeks to prevent and, in other cases, put an
end to it. Elsewise stated, petitioners cannot claim health risks
without display or proof of the environmental damage or threat
which
supposedly resulted from the activation of the subject
subtransmission lines. The former simply cannot stand in the
absence of
the other.
Hence, to prosper, the petition must, at least, contain the
following allegations: (1 ) the environmental law, rule or statute
being
violated; (2) the threat or violation of one's constitutional right to a
balanced and healthful ecology; and (3) the corresponding
environmental damage that threatens or prejudices the life, health
or
property of those affected.
A reading of the petition shows that it made a decent enough a
specification of the first two requisites. Briefly, the petition asserts
that the installation and activation of MERALCO's sub-transmission
lines run afoul with Article 2, Section 15 of the Constitution on the
people's right to health. The petition further alleges that
MERALCO's
project is at loggerheads with Presidential Decree No. 856,
otherwise
known as The Code of Sanitation of the Philippines, specifically
7.3.1. of the Implementing Rules. The foregoing provision prohibits
the setting up of high-tension transmission lines over or
underneath
residential areas. Lastly, the petition states that MERALCO's posts
obstruct drainage systems of Barangay 183, in violation of Section
223 of Commonwealth Act 548 or the Regulation and Control of the
Use of and Traffic on National Roads and Constructions.
However, the petition fell short of asserting nay demonstrating
the environmental damage or the threat thereof, as the case may
be,
which the construction, installation, energization and/or activation
of
MERALCO's power lines have brought upon on the residents of
Barangay 183 and Magallanes Village. The action clearly centers
cables, when activated, may cause insurmountable health
problems,
foremost of which is leukemia among children, 24 without
establishing
the initial relation between the diseases feared and, if any, the
impairment of the environment resulting from MERALCO's actions.
There is admittedly a glaring absence of any allegation directed
against violations of petitioners' right to a balanced and healthful
ecology (or the right to health, as insisted by petitioners) and the
purported environmental damage arising from the installation and
energization of MERALCO's sub-transmission lines. 25
Such inadequacy may be deemed fatal to petitioners' cause,
more so in this case wherein the allegation of the environmental
damage is a vital component of the action. The Rules themselves,
specifically Section 2, Rule 7 thereof require its inclusion in the
petition. Furthermore, the provision used the word “shall” in
reference
to the inclusion of the statement pertaining to the damage to the
environment. In construction, the term “shall” is often considered a
word of command. 26 As such, failure of the petitioners to state the
environmental damage supposedly caused by MERALCO naturally
redounds to the dismissal of the case. It is settled view that a
complaint or petition should contain a plain, concise and direct
statement of the ultimate facts on which the party pleading relies
for
his claim or defense. 27 A fact is essential if it cannot be stricken
out
without leaving the statement of the cause of action inadequate.
28
The fact in question is without doubt an indispensable feature in an
action for Writ of Kalikasan such that the absence thereof renders
the
entire petition decidedly crippled.
With respect to the SECOND issue, petitioners believe and so
argue that MERALCO's high-tension wires emit an electromagnetic
field which causes leukemia in children. Invoking a study
conducted
by A. Ahlbom et al., 29 petitioners argue that exposure to more
than
0.4 microTesla30 increases the risk of childhood leukemia.
Petitioners
likewise presented other studies31 which show similar health
effects to
people closely exposed to electromagnetic fields, i.e., developing
myeloproliferative disorders (conditions that cause blood cells to
grow
abnormally in the bone marrow) and lymphoproliferative disorders
(clonal expansion of lymphatic system cells).
However, a scrutiny of these so-called studies shows
inconclusiveness, if not, unreliability of results. For instance, Exhibit
“H” of petitioners' Memorandum suggests, among others, the
conspiracy theory in the alleged “suppression” of findings relative
to
the link between certain health problems and electromagnetic
fields.
Written by Neal Lawrence, the article entitled “Do High-Voltage
Power Lines Cause Cancer” published in Midwest Today on
April/May 1996, has this to say about the issue, to wit:
“Still, because of our reliance on electricity and the potential
financial consequences for utilities and other companies, the
regulation of EMFs is a politically sensitive issue. There is evidence
to establish that the Bush administration tried to suppress the
findings of a study by the Environmental Protection Agency linking
electromagnetic fields to certain health problems. The Clinton
White
House, meanwhile, has been largely silent on the issue.”
The same article claims that some studies show increased
likelihood in the development of or contributed to the development
of
cancer especially myeloid leukemia on persons with constant
exposure to electromagnetic fields from power lines to home
appliances. However, the same article states that the manner by
which EMFs affect humans is “[s]till not entirely known,” as studies
merely “suggest” on the promotion of cancer “by interfering with
transmission of calcium across the cell membrane.” The article
further plunges into uncertainty when it categorically states that
“EMFs do not produce charged particles, so experts believe they
pose no danger”32 to people. In fact, in the same study, scientists
reveal that studies conducted over the years have produced widely
divergent results33 and scientists are left with no conclusive
results as
to which part of the EMFs, if any, is toxic or important or could be
hazardous to [anyone's] health. 34 In fine, the studies (given that
the
sources of the article actually exist) mentioned in this article have
not
established on a scientific level the causation between EMF and the
diseases commonly associated with its exposure.
The same is true for other studies herein presented by
petitioners. The study conducted by A. Ahlbom et al entitled “A
Pooled Analysis of Magnetic Fields and Childhood Leukemia”
published in 2000 is largely observational, with nary a scientific
explanation or illustration as to how EMF may provoke
physiological
imbalance among children thereby increasing the risk of
contracting
leukemia. The study does not even answer why EMF seems to
stimulate or heighten only the risk of leukemia in children. Hence,
the
uncertainty of their findings:
“We did not find any evidence of an increased risk of
childhood leukemia at residential magnetic field levels < 0.4 uT. We
did, however, find a statistically significant relative risk estimate of
two for childhood leukemia in children with residential exposure to
EMF > 0.4 uT during the year prior to diagnosis. Less than 1% of
the subjects were in the highest exposure category.”
At best, the data gathered are purely statistical in nature with
no scientific evidence or conclusion as to whether the leukemia
suffered by the subjects had been caused initially by their exposure
to EMF-ELF or the direct impression of some other factor,
environmental or otherwise. Interestingly – and rather ironically -
the
same study reveals an entirely antithetical result from parallel
experiments conducted in laboratories. Thus:
“The results of numerous animal experiments and laboratory
studies examining biological effects of magnetic fields have
produced no evidence to support an aetiologic tole of magnetic
fields in leukaemogenesis (Portier and Wolfe, 1998). Four lifetime
exposure experiments have produced no evidence that magnetic
fields, even at exposure levels as high as 2000 uT, are involved in
the development of lymphopoietic malignancies. Several rodent
experiments designed to detect promotional effects of magnetic
fields on the incidence of leukaemia or lymphoma have also been
uniformly negative.”

These conflicting findings are further bolstered by another study
herein attached by petitioners as part of Exhibit “I” conducted
recently
in 2005 by Gerald Draper et al entitled “Childhood Cancer in
Relation to Distance from High Voltage Power Lines In England and
Wales: A Case Control Study.” In said study, the scientists
concluded
that there is no satisfactory explanation for its results (i.e., around
1%
of childhood leukemia cases in England and Wales supposedly
heightened by EMF) in terms of causation by magnetic fields or
association with other factors. Neither the association reported in
the
study nor previous findings relating to the level of exposure to
magnetic fields are supported by convincing laboratory data or any
accepted biological mechanism. 35 The scientists also noted that
the
causal association between childhood leukemia and proximity of
home address has considerable statistical uncertainty and that
there
is no accepted biological mechanism to explain the epidemiological
results because the relation may simply be due to chance or
confounding.
Notably, with the inherent “uncertainty” of petitioners' evidence,
We no longer find it necessary to go over the other studies herein
presented as they are similar to the reports earlier mentioned in
terms of indefiniteness about the so-called health hazards
associated
with constant exposure to EMF-ELFs. In fine, the causal link
between
the alleged harmful effects of EMF or ELF and certain illnesses have
not been clearly and convincingly established. Scientists
themselves
are stuck with a continuum of numbers and are currently unable
tocogitate between causation of childhood leukemia and
electromagnetic fields.
The more recent studies subscribed by the World Health
Organization37 (WHO) echo these views. To this day, science has
not
found consistent evidence to prove that exposure to EMF or, in this
case, extremely low frequency electric magnetic fields (ELF) may
cause direct damage to biological molecules including the DNA.
Even
in case studies that demonstrate negligibly low statistical
probability
of cancer development, the WHO is still cautious as to its
application
owing, in part, to the fact that some uncertainty remains as to
whether magnetic field exposure or some other factor(s) might
have
accounted for the increased leukemia incidents. 38 WHO further
explains that it is possible that there are other explanations for the
observed association between exposure to ELF magnetic fields and
childhood leukemia. 39 Hence, in a study40 conducted by WHO in
2005, the team of scientists commissioned to perform the study on
the subject revealed the following results:
“In October 2005, WHO convened a Task Group of scientific
experts to assess any risks to health that might exist from
exposure
to ELF electric and magnetic fields in the frequency range >0 to
100,000 Hz (100 kHz). While IARC examined the evidence
regarding cancer in 2002, this Task Group reviewed evidence for a
number of health effects, and updated the evidence regarding
cancer. The conclusions and recommendations of the Task Group
are presented in a WHO Environmental Health Criteria (EHC)
monograph (WHO, 2007).
Following a standard health risk assessment process, the
Task Group concluded that there are no substantive health issues
related to ELF electric fields at levels generally encountered by
members of the public. Thus the remainder of this fact sheet
addresses predominantly the effects of exposure to ELF magnetic
fields.”
While the study might have referred to ELF exposure as
“possibly carcinogenic”41 the WHO explains that the
epidemiological
evidence thereof is, nonetheless, weakened by methodological
problems, such as potential selection bias. WHO went on to explain
that there are no accepted biophysical mechanisms that would
suggest that low-level exposures are involved in cancer
development.
Thus, if there were any effects from exposures to these low-level
fields, it would have to be through a biological mechanism that is
as
yet unknown. Additionally, animal studies have been largely
negative.
Thus, on balance, the evidence related to childhood leukaemia
is not strong enough to be considered causal. 42 As such, the fear
of contracting cancer and other related diseases (as emphasized
by
the petitioners) is entirely devoid of scientific basis. [emphasis
supplied]
In the meantime, while more studies are being conducted on
the subject, the WHO, through the International Commission on
NonIonizing Radiation Protection (ICNIRP) has set the standard for
or
level of exposure to ELF to 100 kHz to 300 GHz43 to which many
countries subscribe including the Philippines. 44 Thus, under
Administrative Order No. 033-0745 which, incidentally supersedes
the
Implementing Rules of the Sanitation Code, 46 the general public
exposure to time-varying electric and magnetic fields should not
exceed 83.33 micoTesla (uT) or 833 milliGauss (mG). It is
established - as no counter argument is being submitted to
contradict
the same - that the maximum EMF-ELF emission from MERALCO's
power lines as examined by the DOH itself does not exceed
16.7mG, way below the acceptable limits set forth under the law.
Thus, in
view of MERALCO's compliance to ICNIRP and DOH standards, the
latter refused to recommend the suspension of the NAIA project
solely on the basis of adverse health effects. 47
It is likewise important to note that in contrast to what was
earlier alleged by petitioners, MERALCO complied with other
standards as mandated under existing laws as evidenced by the
numerous clearances48 obtained thereby from pertinent
government
offices, foremost of which is the Environmental Compliance
Certificate49 issued by the Department of Environment and
Natural
Resources (DENR). This can only mean that MERALCO has taken
the necessary environmental precaution to avoid damaging the
immediate environs.
Also, MERALCO has met the height and distance
requirements50 under The Philippine Electrical Code. A perusal of
the
photographic evidence51 shows that the horizontal clearance (i.e.,
distance of the electrical wire from the building) followed by
MERALCO in erecting its electric posts is approximately three (3)
meters which is far wider or longer than that which is required by
the
Code, i.e., 2.87 meters. 52 The same is true with respect to the
vertical
clearance (i.e., distance of the electrical wires from ground or
structural level directly below it). The Code requires height levels of
electrical wires to be 22.6 meters while those of MERALCO are
between 90 feet and 105 feet. The petitioners, however, challenge
the veracity thereof by alleging that the wires are strung too close
to
the houses while the posts tilted dangerously on the direction of
the
houses and obstructed the drainage system of Barangay 183. 53
Petitioners, however, failed to adduce an iota of evidence to
buttress
such claims. In fact, during the preliminary conference, petitioners
could not state with certainty the distance of the electrical wire
from the house of one of the petitioners, 54 let alone show the
alleged tilting
of the posts or the consequent damage to the drainage system.
At this point, We emphasize that MERALCO's operation is not
illegal or unlawful to begin with. It must be remembered that the
Rules require the act that threatens or violates the people's right to
a
balanced and healthful ecology to be unlawful. 55 The Webster's
New
World Legal Dictionary56 defines “unlawful act” as “behavior that
is
not authorized by law or the commission of or participation in an
activity that violates criminal or civil law.” The construction of the
poles and the energization of the sub-transmission lines are far
from
unauthorized or unlawful. In fact, they are more of a necessity than
anything else. Without adequate power supply, NAIA Terminal 3 will
cease to operate which translates to disruption of hundreds of
flights
everyday, bringing in not just revenue losses in catastrophic
proportions but also insurmountable inconvenience to passengers
whose appointments and, sometimes, livelihood depend on the
timely
and efficient air transport to bring them swiftly to destinations
within
and outside the country. More importantly, MERALCO's installations
was undertaken in compliance firstly to the requisites under
various
statutes, environmental and otherwise. Secondly, it obtained the
necessary certificates and permits to realize its operations under
close scrutiny from government agencies concerned. Simply put,
none of its operations is violative of any law and, as such, may not
be
labeled unlawful.
Incidentally, on the issue pertaining to the commission of forum
shopping, this Court finds sufficient basis to cite the petitioners as
having committed the offense. As correctly pointed out by
MERALCO, while there appears to be difference in the persons
instituting both actions, all of them are similarly situated in terms
of
the interest held and the reliefs sought. It is not denied that both
the
injunction case earlier filed with the RTC of Pasay and the present
petition involve identical question (i.e., whether the installation of
MERALCO's sub-transmission lines poses danger to lives, health
and property to the residents of Barangay 183), identical causes of
action
(i.e., the installation of the power lines, being hazardous to the
residents' health, is a violation of the latter's Constitutional right to
health) and identical reliefs sought (i.e., issuance of an order [TRO
or
TPO] that effectively stop the installation and activation of
MERALCO's sub-transmission lines as well as the nullification of the
working permits and Barangay Resolution issued in favor of
MERALCO).
Nonetheless, while the parties who instituted the present action
are different from those of the injunction case, the petition for a
Writ
of Kalikasan is essentially a class suit, that is, instituted by several
members of a class, on behalf of themselves and all others in the
class, and no relief can be granted upon it, except upon a ground
which is common to all the members of the class. 58 Thus, the
phraseology as adopted in the Rules:
“x x x on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission x x x.”
This means that while the petition for Writ of Kalikasan may be
filed by any one person affected by the unlawful act, the communal
benefit or advantage granted in the judgment redounds to
everyone
similarly situated. Accordingly, in a suit brought by citizens and
taxpayers to determine a public right or a matter of public interest,
all
citizens and taxpayers are regarded as parties to the proceedings
by
representation and are bound by the judgment rendered therein.
59
Hence, if the present action is acted favorably for the petitioners,
the
judgment benefits all the other residents of Barangay 183 and
Magallanes Village, including those who filed the injunction case.
Indeed, it matters not whether both actions are brought up by
different parties for petitioners in the first case and in the instant
case are suing under a common or general interest on a subject
matter in
a representative capacity, for the benefit of those in the same
situation or class. 60 As the Supreme Court repeatedly ruled,
identity
of parties needed to satisfy the requirement in lis pendens or res
judicata requires only an identity of interest, not a literal identity of
parties. 61 Having, thus, identified the commonality of interest
among
the parties of the two actions (among other things), it can be said
that
the filing of the present action is tantamount to forum shopping.
Finally, given the absence of any strong evidence to prove the
health hazards of EMF-ELF exposure, We rule that the THIRD issue
pertaining to the violation of petitioners' right to health lacks
material
basis. As had been established, MERALCO's power lines do not
pose a threat, immediate or otherwise, to the health of the
petitioners
and, in general, to the residents of Barangay 183 of Pasay City and
Magallanes Village in Makati City. Not only is the connection
between
the diseases feared and the exposure to EMF-ELF largely uncertain
and, to a certain extent, speculative, the NAIA project, which
involves
the construction of electric posts and activation of sub-
transmission precautionary principle in resolving the case before it.
lines, has complied with minimum standards set forth under The constitutional right of the people to a balanced and
existing healthful ecology shall be given the benefit of the doubt.”
environmental laws. Unless, so revised and or revoked, these
certificates of compliance shall remain a source of authority to Note that the provision speaks of the lack of scientific certainty
operate by respondent MERALCO. to establish the “causal link between human activity and
environmental effect,” which means the the applicability thereof
As such, no bases may be culled from any of petitioners' cannot stray far from the intendment of the second paragraph
evidence to warrant the issuance of a Writ of Kalikasan. It has been which
the established rule in evidence that each party must prove his pertains to the protection of the environment from the “human
affirmative allegations. 62 In the instance before Us, the burden of activity” as well as the upholding of the right of the people to a
proof lies with petitioners. In failing to prove the causal link balanced and healthful ecology.
between WHEREFORE, premises considered, the instant petition for
the illnesses feared and the EMF generating from MERALCO's Writ of Kalikasan is hereby DENIED for lack of merit.
power lines, petitioners have, in fact, failed to discharge this SO ORDERED.
evidentiary burden. We cannot simply rely on or invoke the
“precautionary principle” as mandated under Section 1, Rule 20 of ORIGINAL SIGNED
the Rules to uphold the averments of the petitioners. The latter STEPHEN C. CRUZ, Associate Justice
provision states:
“Section 1. Applicability. - When there is a lack of full WE CONCUR:
scientific certainty in establishing a causal link between human ISAIAS P. DICDICAN, FRANCHITO N. DIAMANTE
activity and environmental effect, the court shall apply the Associate Justice Associate Justice