COR JESU COLLEGE

School Of Law
Digos City, Davao del Sur

NELSON J. PANGGOY JR.

Selfish Residents,
Self-Centered Environmental
Groups, Greedy Local
Business Entities
Petitioners,
Vs.
DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, STA.
CRUZ ENERGY
Respondents,

POSITION PAPER
(For Petitioners)

PETITION FOR WRIT OF KALIKASAN

Petitioners, by counsel and invoking their God-given and

constitutional right to a balanced and healthful ecology, respectfully state:

PREFATORY STATEMENT

In the case of the issuance Department of Environment and Natural

Resources (DENR) of the Environmental Compliance Certificate (ECC) for
the implementation of the proposed coal-fired power plant project by Sta.
Cruz Energy (SC Energy) without conducting a thorough environmental
assessment of the power station. Petitioners are seeking the intervention of
the Honorable Court to immediately stop the Respondents from
implementing the building of coal-fired power plant in Davao del Sur
because scientific evaluation indicates that there are reasonable grounds for
concern about the dangerous effect on the environment and human health.

Article II Section 15 of the 1987 Constitution provides that “The State

shall Protect and Promote the right to health of the people and instill the
Health Consciousness among them.”
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 Article II Section 16 of the 1987 Constitution provides that “The State
shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.”

In the case of Oposa vs. Factoran G.R. No. 101083; July 30, 1993, the
Court stated that even though the right to a balanced and healthful ecology
is under the Declaration of Principles and State Policies of the Constitution
and not under the Bill of Rights, it does not follow that it is less important
than any of the rights enumerated in the latter:“[it]concerns nothing less
than self-preservation and self-perpetuation, the advancement of which may
even be said to predate all governments and constitutions”. The right is
linked to the constitutional right to health, is
“fundamental”,“constitutionalised”,“self-executing” and “judicially
enforceable”. It imposes the correlative duty to refrain from impairing the
environment.

STATEMENT OF FACTS:

Digos Bay Authority (DBA) and Bansalan Cogeneration Corporation

(BCC) entered in a Memorandum of Agreement (MOU) expressing their
intention to build a power plant in Davao Del Sur. SCC eventually assigned
all its rights and interest under MOU to Sta.Cruz Energy (SC energy). SC
energy applied for the Environmental Compliance Certificate (ECC) with the
DENR. The DENR issued an ECC for the proposed coal-fired power plant.
The P69-billion coal-fired power plant will rise on the foot of Mt. Apo
overreaching the sea, in the boundaries of Digos and Sta.Cruz.

Selfish residents, self-centered environmental groups and greedy local

business entities protested against the project. Digos City officials have even
passed several resolutions opposing the power plant. They also signed the
petition for the issuance of the writ of kalikasan against the proposed coal-
fired power plant.

Environmental damage most certainly will occur if the power plant

project is implemented. These impacts could in turn affect local plant and
forest populations, marine productivity and the health of communities in the
vicinity. Also as a result, the power plant will of course generate tons of waste

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including heavy metals like mercury and lead which will have negative and
irreversible impact on the environment, people’s health and livelihood.

GROUNDS FOR THE ISSUANCE OF THE WRIT OF

KALIKASAN

1. It will violate the constitutional rights of the residents living nearby the
location of the proposed Coal-fired power plant to a balanced and
healthful ecology which is being enshrined in Article II Sections 15 and
16 of the 1987 Constitution.

2. The Coal-fired power plant was not approved by the Local Government
Unit of Digos City and Sta. Cruz, Davao del Sur, respectively.
DISCUSSION
1. It Violates the Right to balanced and healthful Ecology

Article II Section 15 of the 1987 Constitution provides that “The

State shall Protect and Promote the right to health of the people and
instill the Health Consciousness among them.”

Article II Section 16 of the 1987 Constitution provides that “The

State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of
nature.

In the case of Oposa vs. Factoran, Jr. G.R. No. 101083; July 30, 1993,
the Supreme Court stated that the right to a balanced and healthful ecology
is to be found under the Declaration of Principles and State Policies and not
under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need
not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the

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fundamental charter, it is because of the well-founded fear of its framers that
unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present
generation, but also for those to come — generations which stand to inherit
nothing but parched earth incapable of sustaining life.

Also in the case of Oposa vs. Factoran, Jr. G.R. No. 101083; July 30,
1993, where it involves thirty-four minors who went to Court represented by
their parents pleading the cause of “inter-generational responsibility” and
“inter-generational justice” and asking the Supreme Court to order the
Secretary of the Department of Environment and Natural Resources to
cancel all existing timber license agreements and to “cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. The minors filed the action for themselves as representing |their
generation as well as generations yet unborn.” They originally gone to a lower
court but it dismissed the petition of the minors but the Supreme Court
reversed. Although Oposa, Jr. did not order the Secretary outright to cancel
licenses and desist from issuing new ones, the Court affirmed the
justiciability of the issue raised. The Court, on the basis of Section 16, linked
with the right to health, recognize a “right to a balanced and healthful
ecology” and “the correlative duty to refrain from impairing the
environment.”

In our case, Coal is the dirtiest, most carbon intensive of all fossil fuels,
emitting 29 percent more carbon per unit of energy than oil and 80 percent
more than gas. It is one of the leading contributors to climate change, the
single biggest environmental threat facing the planet today. Furthermore, a
study conducted by the European Commission in 2003 on different types of
power generation bared that coal-fired power plants registered the highest
external cost. External costs arise when project impacts such as damages to
human health are not fully accounted or compensated for by a power
plant.Ash samples taken from Philippine coal-fired power plants, all
revealed the presence of mercury—a deadly neurotoxin, arsenic—a known

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carcinogen, as well as the hazardous substances lead and chromium. Host
populations/communities may have been exposed to such health risks
(http://notocoal.weebly.com/masinlocoal.html#.Wdyf-WiCzIU).

2. Violation of the Right to Prior Approval

Section 27 of the Local Government Code of 1991 or the Republic Act

No. 7160 provides also for the Prior Consultations Requirement which states
that “No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of the Constitution.”

Section 26 of the Local Government Code of 1991 or the Republic Act

No. 7160 provides for the Duty of National Government Agencies in the
Maintenance of Ecological Balance which states that “It shall be the duty of
every national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any project
or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government
units, nongovernmental organizations, and other sectors concerned and
explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize
the adverse effects thereof.”

It is well stated that there must be a Prior consultation requirement to

be made and it should have a prior approval from the sanggunian before the
implementation of a project. It will be against the law if SC energy will
continue to build the power plant since the LGU of Digos and together with
the petitioners protested and passed resolutions against the building of the
power plant.

NELSON J. PANGGOY JR.