LSM Network: First ever “Writ of Kalikasan” filed in CA vs. MERALCO

By Atty Harry Roque

http://harryroque.com/

In the first ever case for the issuance of a writ of kalikasan, residents of Pasay and Makati are seeking the dismantling of electricity transmission poles and lines near their houses.

The residents of Barangay 183 in Villamor, Pasay City and Magallanes Village in Makati City filed their petition before the Court of Appeals, arguing that the erection of electricity poles carrying 115-kilovolt transmission lines near their residences was cleared by their barangay officials without consulting them and without studying the possible adverse effects of the lines to their health.

The petitioners are citing scientific studies that have shown that the energy produced by the electricity running through the lines will bring hazardous effects to the health and safety of the people living nearby.

Atty. Harry Roque, counsel for the petitioners, said that the local government officials failed to comply with the legal requirements in the construction and installation of these structures.

“Under Article II, Section 15 and 16 of the Constitution, they have a duty to protect and promote the right of the people to good health and balanced ecology,” said Roque. He added that the failure to conduct prior public consultation is a violation of Section 27 of the Local Government Code.

As an injunctive measure, the petitioners have asked the Court of Appeals to issue a Temporary Environmental Protection Order (TEPO), which is a feature introduced by the new Rules of Procedure for Environmental Cases (AM No. 09-6-8-SC), under which their petition was filed. A TEPO will prohibit the further installation of new poles and transmission lines while the case is pending with the court.

AM No. 09-6-8-SC, which governs the issuance of the writ of kalikasan, was promulgated early this year to hasten the resolution of environmental cases.

HERE’S the text of the Petition:

Republic of the Philippines

COURT OF APPEALS

Manila

GEMMA C. DELA CRUZ, FIDEL E. AMOYO, VIOLETA M. CRUZ, ZENAIDA C. MANGUNDAYAO, ANDRES M. COMIA, MARJORIE N. PABLO, MARIA TERESITA R. CANON, JOEL JULIUS A. MARASIGAN, GINALYN V. CACALDA, BABY LYNN E. TAGUPA, LYDIA B. RAYOS, JESUS R. PUENTE, JACINTO R. RICAPLAZA, ARMANDO P. PADILLA, FLORENTINO MARTINEZ, MARIE AMELITA R. MICIANO, LYDIA R. MICIANO, MA. LOURDES U. LACSON, JUAN CARLOS C. GAON, MA. BLEZIE C. GAON, AUREA A. PARAS, REMEDIOS Z. MORENO, MARIA JUANA N. CARRION, ALICIA K. KATIGBAK, JEDEDIA M. TUMALE, VICENTA M. MORALES, REYNALDO G. MARQUEZ, MARIA LUISA V. GORDON, NOEMI M. GOMEZ, MARIA CHRISTINA D. RIVERA, CATHERINE D. ROMERO-SALAS, MERCEDITA O. BELGADO, REV. FR. EDWIN EUGENIO MERCADO, MA. CONCEPCION M. YABUT, REYNALDO Z. SANTAYANA, ANGELO D. SULIT, ALFREDO A. GLORIA, JR., MICHAEL L. DE JESUS, JUSTIN MARC CHIPECO, KAREN HAZEL GANZON and JIMMY FAMARANCO,

Petitioners,

- versus – CA-G.R. SP. NO. ________________

(Petition for Writ of Kalikasan with prayer for Temporary Environmental Protection Order [TEPO])

MANILA ELECTRIC COMPANY (MERALCO), BARANGAY CHAIRMAN CESAR S. TOLEDANES, in his capacity as Barangay Chairman of Barangay 183, Zone 20, Villamor, Pasay City, BARANGAY COUNCIL OF BARANGAY 183, ZONE 20, VILLAMOR AIR BASE, PASAY CITY, RUTH M. CORTEZ, RICARDO R. DIMAANO, LEONARDO A. ABAD, NORMITA CASTILLO and AMANTE C. CACACHO, in their capacity as Members of the Barangay Council of Barangay 183, Zone 20, Villamor, Pasay City and MANILA INTERNATIONAL AIRPORT AUTHORITY (MIAA),

Respondents.

x————————————————–x

PETITION FOR WRIT OF KALIKASAN

WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO)

Petitioners, through the undersigned counsel, and to this Honorable Court, respectfully state that:

PREFATORY STATEMENT

1. What use will modernization serve if it proves to be a scourge on an individual’s fundamental right, not just to health and safety, but, ostensibly, to life preservation itself, in all of its desired quality?[1]

NATURE OF THE PETITION

2. This is a petition for the issuance of a Writ of Kalikasan, filed with this Honorable Court pursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, concerning as it is the violation of the constitutional rights of the residents of the Cities of Pasay and Makati to a balanced and healthful ecology.

PARTIES

3. Petitioners are residents and inhabitants of Barangay 183-Villamor, Zone 20, Pasay City andMagallanes Village, Makati City, all of legal age, Filipinos, with capacity to sue, and residents of the following addresses, respectively:

Name

Address

GEMMA C. DELA CRUZ

40 Mata St. cor. Manlunas Extension, Barangay Villamor, Pasay City

FIDEL E. AMOYO

P 36-08 9th cor. 2nd Sts., Barangay Villamor, Pasay City

VIOLETA M. CRUZ

Barangay Villamor, Pasay City

ZENAIDA C. MANGUNDAYAO

F11 4th 21st St., Villamor Air Base,Pasay City

ANDRES M. COMIA

P36-10 9th St., Villamor Air Base,Pasay City

MARJORIE N. PABLO

B85 L9, 12-27th St., Villamor Air Base,Pasay City

MARIA TERESITA R. CANON

P-11-24 3rd St., Villamor Air Base,Pasay City

JOEL JULIUS A. MARASIGAN

U203 EAM Apratments 6th St., Villamor Air Base, Pasay City

GINALYN V. CACALDA

P57-05 17th St., Villamor Air Base,Pasay City

BABY LYNN E. TAGUPA

F1 4th St., Barangay Villamor, PasayCity

LYDIA B. RAYOS

P18-03 7th-12th St., AM’s Village, Barangay Villamor, Pasay City

JESUS R. PUENTE

P35-09 9th St., Airmen’s Village, Barangay Villamor, Pasay City

JACINTO R. RICAPLAZA

Block 72 Lot 25, 17th St., Villamor Air Base, Pasay City

ARMANDO P. PADILLA

18 Sta. Rosa St., Magallanes Village,Makati City

FLORENTINO L. MARTINEZ

20 Magdalena Circle, MagallanesVillage, Makati City

MARIE AMELITA R. MICIANO

23 Humabon St., Magallanes Village,Makati City

LYDIA R. MICIANO

23 Humabon St., Magallanes Village,Makati City

MA. LOURDES U. LACSON

29 Humabon St., Magallanes Village,Makati City

JUAN CARLOS C. GAON

AA 428 Galeria de Magallanes,Magallanes Village, Makati City

MA. BLEZIE C. GAON

AA 428 Galeria de Magallanes,Magallanes Village, Makati City

AUREA G. PARAS

16 Encarnacion St., MagallanesVillage, Makati City

REMEDIOS Z. MORENO

14 Socorro St., Magallanes Village,Makati City

MARIA JUANA N. CARRION

AB 105 Galeria de Magallanes,Magallanes Village, Makati City

ALICIA K. KATIGBAK

35 Limasawa St., Magallanes Village,Makati City

JEDEDIA M. TUMALE

38 Trinidad St., Magallanes Village,Makati City

VICENTA M. MORALES

43 Magdalena St., MagallanesVillage, Makati City

REYNALDO G. MARQUEZ

B102 Galeria de Magallanes,Magallanes Village, Makati City

MARIA LUISA V. GORDON

60 San Gregorio St., MagallanesVillage, Makati City

NOEMI M. GOMEZ

22 Humabon St., Magallanes Village,Makati City

MARIA CHRISTINA D. RIVERA

18 Homonhon St., MagallanesVillage, Makati City

CATHERINE D. ROMERO-SALAS

4 San Pablo St., Magallanes Village,Makati City

MERCEDITA O. BELGADO

30 Magdalena St., MagallanesVillage, Makati City

REV. FR. EDWIN E. MERCADO

St. Alphonsus Mary de Ligouri Church, Humabon St., MagallanesVillage, Makati City

MA. CONCEPCION M. YABUT,

Magallanes Village, Makati City

REYNALDO Z. SANTAYANA,

20 Limasawa St., Magallanes Village,Makati City

ANGELO D. SULIT

37 Homonhon St., MagallanesVillage, Makati City

ALFREDO A. GLORIA, JR.

24 Mactan St., Magallanes Village,Makati City

MICHAEL L. DE JESUS

Asia Pacific College, Humabon St.,Magallanes Village, Makati City

JUSTIN MARC CHIPECO

36 Magdalena St., MagallanesVillage, Makati City

KAREN HAZEL GANZON

36 Magdalena St., MagallanesVillage, Makati City

JIMMY FAMARANCO

Magallanes Village, Makati City

Petitioners may be served with the orders, resolutions, notices and processes of this Honorable Court through their counsel of record, Atty. H. Harry L. Roque, Jr., at Roque and Butuyan Law Offices, 1904 Antel Corporate Centre, 121 Valero Street, Salcedo Village, 1227 Makati City, Philippines.

4. Respondent MANILA ELECTRIC COMPANY (MERALCO) is a domestic corporation created and organized pursuant to the laws of the Republic of the Philippines with principal office address atMERALCO Building, Ortigas Avenue, Pasig City, where it may be served with summons and other processes of this Honorable Court.

5. Respondent BARANGAY CHAIRMAN CESAR S. TOLEDANES is the Barangay Chairman of Bgy. 183, Zone 20, Villamor, Pasay City where he may be served with summons and other processes of the Honorable Court.

6. Respondent BARANGAY COUNCIL OF BARANGAY 183, ZONE 20, VILLAMOR, PASAYCITY, composed of:

a. Respondent RUTH M. CORTEZ, of legal age, Filipino;

b. Respondent RICARDO R. DIMAANO, of legal age, Filipino;

c. Respondent LEONARDO A. ABAD, of legal age, Filipino;

d. Respondent NORMITA CASTILLO, of legal age, Filipino; and

e. Respondent AMANTE C. CACACHO, of legal age, Filipino,

are holding office at the Barangay Hall of Barangay 183 located at Barangay 183, Zone 20, Villamor, PasayCity, where they may be served with summons and other processes of this Honorable Court.

7. Respondent MANILA INTERNATIONAL AIRPORT AUTHORITY (MIAA) is a government agency created and organized pursuant to the laws of the Republic of the Philippines, vested with the power to administer and operate the Ninoy Aquino International Airport III (NAIA 3), and with principal office address at MIAA Administration Building, NAIA Complex Pasay City, where it may be served with summons and other processes of the Honorable Court.

STATEMENT OF FACTS

8. Barangay 183 Zone 20, Villamor, Pasay City (hereinafter referred to as “Barangay 183”, for brevity) used to be part of the Villamor Air Base. It was thereafter converted into a private residential land pursuant to Republic Act No. 7227, otherwise known as “An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion And Development Authority For This Purpose, Providing Funds Therefor And For Other Purposes”. As such, the said parcel of land was subdivided and afterwards sold and awarded to its inhabitants, including herein Petitioners.

9. Magallanes Village (hereinafter referred to as “Magallanes Village”, for brevity) is a residential area located in Makati City adjacent to Barangay 183.

10. The Petitioners are existing residents and inhabitants of Barangay 183 and Magallanes Village. Some of them have likewise established their respective businesses and livelihood therein.

11. On 13 July 2009, without the prior authority from and approval by Respondent Barangay Council of Barangay 183, Zone 20, Villamor Air Base, Pasay City (hereinafter referred to as “Respondent Barangay Council”) and without the prior consultation with the constituents of the barangay, Respondent Barangay Chairman Cesar S. Toledanes (hereinafter referred to as “Respondent Toledanes”) issued a Barangay Working Permit Clearance “for the installation of 115 KV sub-transmission lines and poles at the10th and 12th Streets of Barangay 183.”[2]

12. Belatedly, however, on 02 September 2009, Respondent Barangay Council, composed of Respondents Cesar Toledanes, Ruth Cortez, Ricardo Dimaano, Leonardo Abad, Normita Castillo and Amante C. Cacho, passed Barangay Resolution No. 40-S-2009, authorizing Respondent Toledanes to issue a Barangay Permit authorizing respondent MERALCO to install high voltage power lines and poles at the 10thand 27th Streets of Barangay 183.[3] Similar to the Working Permit Clearance issued, Barangay Resolution No. 40-S-2009 was issued without a prior consultation with the constituents of the barangay.

13. Also, despite the close proximity of the installation of the high tension wires and poles to the nearby Magallanes Village in Makati City, the residents and inhabitants of the same were not notified or consulted with respect to such plans.

14. Thus, sometime in August 2010, Respondent MERALCO began erecting towering posts along the 10th, 12th and 27th streets of Barangay 183 and lining the perimeter wall between Barangay 183 andMagallanes Village.[4] The thirty (30) foot-high poles will hold the transmission lines that will supply more or less one hundred fifteen (115) Kilovolts (KV) of electricity to the Ninoy Aquino International Airport III (NAIA 3).

15. Petitioners were not informed that Respondent MERALCO was going to erect such posts in Barangay 183 either by Respondent MERALCO, Respondent MIAA, who administers and operates the Ninoy Aquino International Airport III (NAIA 3), and Respondents Toledanes, Ruth Cortez, Ricardo Dimaano, Leonardo Abad, Normita Castillo and Amante C. Cacacho, who are the barangay officials of Barangay 183. As such, Petitioners were surprised to find out Respondent MERALCO had already begun erecting the said posts without their knowledge and without public discussion.

16. The high tension transmission lines shall traverse the entire 10th and 12th streets of Bgy. 183, and shall pass along the concrete wall separating Barangay 183 of Pasay City and Magallanes Village of Makati City.

17. On 18 October 2010, Petitioner Gemma dela Cruz, on behalf of the other Petitioners, sent a letter to Respondents Toledanes, Cortez, Dimaano, Abad, Castillo and Cacacho, appealing for the recall of the Barangay Working Permit and Resolution No. 40-S-2009 earlier issued by them.[5] This, however, proved futile.

18. The alarming presence of the towering posts being erected in close proximity to–that is, as near as one (1) meter from–the respective properties of Petitioners-Residents of Bgy. 183 and less than ten (10) meters from the respective properties of Petitioners-Residents of Magallanes Village, and the hazardous effects of the high tension wires to their health and safety, bring Petitioners to seek the intervention of this Honorable Court.

19. Due to the urgency of the situation, as the installation and energizing of the high tension wires will be completed by December 2010, there is a need to protect the Petitioners from the hazardous and ill effects of the same.

GROUNDS FOR THE ALLOWANCE OF THE PETITION

- I -

THE INSTALLATION OF THE HIGH TENSION WIRES POSES DANGER TO THE LIVES, HEALTH AND PROPERTY OF THE RESIDENTS OF BARANGAY 183, PASAY CITY AND MAGALLANES VILLAGE, MAKATI CITY, INCLUDING HEREIN PETITIONERS;

- II -

THE ENVIRONMENTAL DAMAGE THAT WILL BE CAUSED BY THE INSTALLATION OF SAID HIGH TENSION WIRES WILL AFFECT THE RESIDENTS OF BARANGAY 183, PASAY CITY ANDMAGALLANES VILLAGE, MAKATI CITY;

- III -

THE INSTALLATION OF THE SAID HIGH TENSION WIRES VIOLATES PETITIONER’S CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY AS WELL AS ESTABLISHED ENVIRONMENTAL LAWS, RULES AND REGULATIONS.

- IV -

THE ISSUANCE OF THE BARANGAY WORKING PERMIT CLEARANCE AND RESOLUTION NO. 40-S-2009 WAS TAINTED WITH IRREGULARITIES

- V -

THERE IS ANOTHER SUITABLE AND SAFER ROUTE FOR RESPONDENT MERALCO’S POWER TRANSMISSION PROJECT

DISCUSSION

I- THE INSTALLATION OF THE HIGH TENSION WIRES POSES DANGER TO THE LIVES, HEALTH AND PROPERTY OF THE RESIDENTS OF BARANGAY 183, PASAY CITY AND MAGALLANESVILLAGE, MAKATI CITY, INCLUDING HEREIN PETITIONERS

================================

20. Scientific studies and research have revealed that there are health risks involved in prolonged exposure to electromagnetic field or radiation. The risks include cancer, leukemia in children, Alzheimer’s disease, depression, miscarriages, headaches, memory loss and insomnia, to name a few.[6]

21. Alasdair and Jean Philips, in their book, The Powerwatch Handbook, published in 2006, noted that there are links between disease – such as leukaemia – and electromagnetic fields (EMFs) and cites several instances of such, thus:

“In Abergavenny, in Wales, 4 neighbors living near powerlines developed brain tumours over a period of 18 months.

In the 8 houses closest to powerlines in Kilmarnock, Scotland, 9 people have died of cancer over the last 15 years.

In Dalmally, also in Scotland, in a small estate of 36 houses under a 275,000-volt powerline, 8 people died of cancer in 5 years, and 3 of motor neurone disease (MND).

A street in Exeter, Devon, where a 132,000-volt electricity pylon looms outside the homes of some of the residents has been dubbed ‘Death Road.’ In 28 houses, 23 people havedied from heart disease or cancer. In fact, the number of cancer deaths on the road is five times higher than the norm for Devon and Cornwall. Residents also complain of depression, headaches and memory loss.

x x x x x x x x x

In 1989, the Studholme family bought a bungalow in Great Manchester. An electricity meter in a cupboard in the hallway emitted a strong electromagnetic field through the wall into the front bedroom. Their son Simon slept with his head less than a yard from this meter. He started to complain of pains, but the doctors found nothing wrong. Within 18 months he had developed acute lymphatic leukaemia. He died in 1992 at the age of 13. Subsequent tests revealed that Simon had been sleeping in an electromagnetic field over 2.5 microtesla (a measurement of electromagnetic field strength), more than sixty times the average exposure level in UK homes. x x x”[7]

22. Moreover, there are also a good number of evidence that electromagnetic fields play a role not only in the development of brain and breast cancers but also of Alzheimer’s disease, depression and suicide, ALS or the Lou Gehrig’s disease which is a form of motor-neurone disease, incidents of miscarriages, and the development of the condition, known variously as electrosensitivity or electromagnetic hypersensitivity.[8]

23. Another concern that should be raised is the inevitable devaluation of the properties exposed to these high powered transmission lines. Because of their close proximity to the properties of Petitioners, the high voltage transmission lines would certainly restrict the height of the buildings, houses and structures that could be built on Petitioners’ properties. The presence itself of these gigantic steel posts, with huge cables strung to them, towering over Petitioners’ properties would surely scare away prospective buyers in case Petitioners decide to sell their properties. Undoubtedly, these circumstances mean a diminution of the value of their properties and loss of possible income and business opportunities.

24. Also, these high tension transmission lines shall transmit one hundred fifteen (115) Kilovolts of electricity to NAIA 3. However, the actual voltage may turn out to be higher considering the thirty (30) Megavolt (or 30,000 Kilovolt) requirement for the full operation of the NAIA 3. This increased electric currents passing through these high tension transmission lines would concomitantly result in the increased risk that the Petitioners and the other inhabitants of Barangay 183 and Magallanes Village are faced with.

25. Granting that the voltage that would be transmitted by these powerlines is only equivalent to 115KV, still the required distance for the electromagnetic field level to be within safe limits is around eighty seven (87) meters away.[9] In the instant case, the high tension transmission lines being erected by Respondent MERALCO are being constructed within a distance of less than one (1) meter from the houses and properties of the Petitioners-residents of Barangay 183 and less than ten (10) meters from the houses and properties of Petitioners-residents of Magallanes Village. Worse, there are two rows of these MERALCO posts holding the high tension wires and they are installed within close distance from each other, flanking residential houses, which will unfortunately absorb the concentrated EMFs that will be emitted by the transmission lines from both sides.

26. Sadly, if this kind of power transmission project is not immediately aborted, Barangay 183 and Magallanes Village, will one day have their own versions of the so-called “death roads” with their inhabitants as the “guinea pigs in this great electro-magnetic experiment.”[10]

27. The health risks linked to exposure to electromagnetic fields were raised by the residents ofDasmariñas Village, Makati as their battlecry in seeking an injunctive relief against the Power Transmission Project of the National Power Corporation (NAPOCOR) within the said Village in the case of Eduardo F. Hernandez, et al. v. National Power Corporation.[11]

28. In the aforementioned case, NAPOCOR’s 230 Kilovolt Sucat-Araneta-Balintawak Power Transmission Project was supposed to pass through the Sergio Osmeña, Sr. Highway (South Superhighway), the perimeter of Fort Bonifacio, and Dasmariñas Village proximate to Tamarind Road, where the Dasmariñas villagers’ homes are. Recognizing the health and safety risks posed by the high voltage transmission lines, the Supreme Court enjoined the NAPOCOR from further preparing and installing high voltage cables to the steel pylons erected near the villager’s homes and from energizing and transmitting high voltage electric current through said cables.

29. Living up to its reputation as the ultimate guardian and defender of the rights of the people, the Supreme Court, in all its wisdom and good judgment, declared:

“In the present case, the far-reaching irreversible effects to human safety should be the primordial concern over presumed economic benefits per se as alleged by the NAPOCOR.”[12] (emphasis, supplied)

30. In another case, the Supreme Court even observed that construction of residential structures in areas where there are high tension transmission lines, was declared to be unsafe and prohibited. Said the Supreme Court –

“It is not safely habitable. It is built in a subdivision area where there is an existing 30-meter right of way of the Manila Electric Company (Meralco) with high-tension wires over the property, posing a danger to life and property. The construction of houses underneath the high tension wires is prohibited as hazardous to life and property because the line carries 115,000 volts of electricity, generates tremendous static electricity and produces electric sparks whenever it rained.[13] (Emphasis supplied.)

31. If because of the danger and hazard that high tension transmission lines pose, construction of residential houses is prohibited in areas where said transmission lines exist, then why allow the same hazardous transmission lines to be installed in established residential areas? Clearly, for health and safety reasons, high-voltage transmission lines and residential areas should never co-exist in the same place. By logical inference, high voltage transmission lines, which are hazardous to life and property, should be prohibited and should never be allowed in residential areas, especially in densely populated ones like the herein residences of Petitioners.

32. These health hazards linked to exposure to EMFs are not the only matters which cause alarm to the Petitioners.

33. Some of the posts which will carry the tremendous amount of electricity have not been erected properly. Thus, some of the posts are tilting in an apparently unstable position.[14] Thus, not only are the lives, health and property of the residents of Barangay 183 and Magallanes Village at risk of EMF radiation but also run the risk of being physically tumbled upon should these unstable and tilting posts give way.

34. Moreover, most if not all of the said posts erected by Respondent MERALCO encroach into the drainage canals of Barangay 183.[15] In case of heavy rains and typhoons, dangers of flooding will have to be expected in Barangay 183 which will certainly affect adjacent areas, including Magallanes Village. As a matter of fact, some areas of Barangay 183 which do not usually experience flooding caused by moderate rainfall are now experiencing slight inundation in their area.

35. By way of example, attached herewith as Annex “E” to E-1”, are photographs of the effects of Typhoon Ondoy in Barangay 183.

II- THE ENVIRONMENTAL DAMAGE THAT WILL BE CAUSED BY THE INSTALLATION OF SAID HIGH TENSION WIRES WILL AFFECT THE RESIDENTS OF BARANGAY 183, PASAY CITY ANDMAGALLANES VILLAGE, MAKATI CITY

================================

36. Considering the high voltage that will run through the subject high tension wires, the environmental damage is expected to have adverse effects to the inhabitants of two (2) cities, Barangay 183 of Pasay City and Magallanes Village of Makati City. The construction of these posts by Respondent MERALCO transcends the boundaries of Barangay 183 in Pasay City and extends to Magallanes Village of Makati City. Presently, a 115KV a couple of electricity pylons have already been constructed very near the wall separating the two cities.[16] The distance separating these posts and the residential area of MagallanesVillage is only about four (4) to five (5) meters, which undoubtedly does not comply with the safe-distance requirement of at least 87 meters.

III- THE INSTALLATION OF SAID HIGH TENSION WIRES VIOLATES PETITIONER’S CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY AS WELL AS ESTABLISHED ENVIRONMENTAL LAWS, RULES AND REGULATIONS

================================

37. As shown hereinabove, the implementation of Respondent MERALCO’s project violates Petitioners’ right to health as enshrined in Section 15, Article II of the 1987 Constitution, viz.:

ARTICLE II

Declaration of Principles and State Policies

“Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.” (Emphasis supplied.)

38. In the same manner, Presidential Decree No. 856, otherwise known as the Code of Sanitation of the Philippines, categorically prohibits the installation of high tension transmission lines in residential areas. Its Implementing Rules, issued on 16 April 1998, in fact, provides in no uncertain terms that –

“7.3 Electric and Electronic Industries

7.3.1 High-tension transmission lines shall never pass overhead or underground ofresidential areas.” (emphasis, added)

39. P.D. No. 856 is cited in the recent Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC), promulgated on 29 April 2010, as one of the bases for filing cases involving enforcement or violations of environmental and other related laws, rules and regulations. On the basis of the above-quoted implementing rules of P.D. No. 856 alone, it follows that the implementiation of Respondent MERALCO’s high power transmission project in Barangay 183, a residential area, is illegal and should never be allowed.

40. Also, the fact that these MERALCO posts obstruct the drainage system of Barangay 183, is a clear violation of Commonwealth Act No. 548 otherwise known as the Regulation and Control of the Use of and Traffic on National Roads and Constructions, which effectively provides that –

“SECTION 2. It shall be unlawful for any person to convert any part of any national road to his private use or in any manner to obstruct or damage the same or any bridge, culvert, drainage ditch, road sign, or other appurtenance pertaining thereto.” (Emphasis supplied.)

41. Finally, as mentioned above, the distances alone at which these high tension transmission lines and posts are being constructed alongside the properties and homes of Petitioners and the inhabitants of Barangay 183 and Magallanes Village, do not pass the standards required therefor. Thus, the high tension transmission lines being erected by Respondent MERALCO are being constructed within a distance of less than one (1) meter from the houses and properties of the residents of said barangay contrary to the required distance for the electromagnetic field level to be within safe limits, which is around eighty seven (87) meters.

IV- THE ISSUANCE OF THE BARANGAY WORKING PERMIT CLEARANCE AND RESOLUTION NO. 40-S-2009 WAS TAINTED WITH IRREGULARITIES

===========================

42. Section 27 of the Local Government Code[17] was also breached when Respondent MERALCO and Respondent MIAA failed to comply with the requirements of prior consultation with the residents of Barangay 183 and Magallanes Village as regards the implementation of its project. As held in the similar case of Hernadez, et. al. vs. NAPOCOR (supra.) –

“To boot, petitioners, moreover, harp on respondent’s failure to conduct prior consultation with them, as the community affected by the project, in stark violation of Section 27 of the Local Government Code which provides: “no project or program shall be implemented by government authorities unless the consultations mentioned are complied with, and prior approval of the Sanggunian concerned is observed.

x x x x x x x x x

Moreover, the Local Government Code, requires conference with the affected communities of a government project. NAPOCOR, palpably, made a shortcut to this requirement. In fact, there appears a lack of exhaustive feasibility studies on NAPOCOR’s part before making a go with the project on hand; otherwise, it should have anticipated the legal labyrinth it is now caught in.”

43. In the same vein, the Barangay Working Permit Clearance issued by Respondent Toledanes to Respondent MERALCO obviously suffers from patent irregularities.

44. First, the Barangay Working Permit Clearance was issued without the authority of the Respondent Barangay Council. The Respondent Barangay Council only approved Barangay Resolution No. 40-S-2009 on 02 September 2009 while the Barangay Working Permit was issued on 13 July 2009.

45. Second, the Working Permit issued by Respondent Toledanes allowed the installation of the high voltage wires power lines and poles at the 10th and 12th Streets of Barangay 183, while the Resolution of the Respondent Barangay Council only authorized the construction of power lines along 10th and 27thStreets, excluding 12th St.

46. Indubitably, Respondent Toledanes, in a series of meetings requested by Petitioners, admitted that he and the Respondent Barangay Council did not conduct any consultation with the affected constituents before they issued the subject permit. Thus, the Barangay Working Permit which actually gave life to the power transmission project of MERALCO should be struck down as illegal, issued in grave abuse of discretion and in excess of or without authority on the part of Respondent Toledanes.

V- THERE IS ANOTHER SUITABLE AND SAFER ROUTE FOR RESPONDENT MERALCO’S POWER TRANSMISSION PROJECT.

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47. Respondent MERALCO may very well install the subject transmission lines along Sales Street, Villamor Air Base, Pasay City, where there are no residential houses or buildings and which provides a shorter distance from Respondent MERALCO’s source of electricity as compared to the circuitous route along the 10th and 12th Streets of Barangay 183.

48. Thus, it makes no sense that the said high tension transmission lines are being erected in an inhabited and populous area, endangering the lives of the people therein, when it may be erected in an alternative location, which would result in a negligible effect on the Petitioners and the inhabitants of Barangay 183 and Magallanes Village.

ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR A TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO)

49. For reference, Petitioners replead all the foregoing allegations in support of their prayer for a Temporary Environmental Protection Order (TEPO);

50. The foregoing allegations undoubtedly demonstrate Petitioners’ clear and unmistakable right to a healthful ecology and to be protected against any unlawful acts involving environmental damage that tend to endanger their life, health and property;

51. Respondents MERALCO and MIAA are poised to continue with and complete the installation of the high tension wires along the entire stretch of 10th, 12th and 27th of Barangay 183 the soonest time possible as in fact Respondent MERALCO has been working almost twenty-four (24) hours within the said areas of Barangay 183 to hasten the completion of the acts complained of;

52. The acts complained of, aside from being unconstitutional, illegal and contrary to established environmental rules and regulations, are clearly in violation of the foregoing rights of the Petitioners;

53. The matter is thus of extreme urgency that, unless immediately restrained, will inevitably cause damage to the environment, the inhabitants of Magallanes Village of Makati City and of Barangay 183, Zone 20, Villamor of Pasay City, including the herein Petitioners who will all suffer grave injustice and irreparable injury;

54. If not curtailed, the continuous commission by the Respondents of the acts complained of might also render the final judgment granting the reliefs sought in the instant petition ineffectual.

55. An Affidavit of Merit in support of Petitioners’ application for the issuance of a Temporary Environmental Protection Order is hereto attached as Annex “F”.

EPILOGUE

56. Progress is desirable. The operation of the NAIA represents economic advancement. It promises convenience to international travelers. A way to attract foreign investors and bring more income for the government. The purpose is admirable, but to attain it at all costs, even at the expense of lives and well-being of people, for whom the desired economic development is intended in the first place, is unacceptable if not immoral. For then, the way of accomplishing it altogether defeats its purpose. Economic gain has never been more important than a person’s right to life and well-being.

PRAYER

WHEREFORE, it is respectfully prayed of the Honorable Court that:

1. Immediately upon the filing of this petition, a Temporary Environmental Protection Order (TEPO) and or a Writ of Kalikasan be issued, ordering Respondents and any person acting on their behalf, to cease and desist from conducting excavation works, installing poles and transmission lines along the entire stretch of 10th, 12th and 27th Streets of Barangay 183, Zone 20, Villamor, Pasay City and from energizing and transmitting high voltage electric current through the said powerlines.

2. After a summary hearing, issue a Resolution, extending the effectivity of the TEPO until the termination of this case; and

3. After due proceedings, a Decision be rendered–

(a) Making the TEPO and/or Writ of Kalikasan permanent, directing Respondents and any person acting on their behalf, to cease and desist from conducting excavation works, installing poles and transmission lines along the entire stretch of 10th, 12th and 27th Streets of Barangay 183, Zone 20, Villamor, Pasay City and from energizing and transmitting high voltage electric current through the said powerlines;

(b) Nullifying the Barangay Working Permit Clearance dated 13 July 2009 issued by Barangay 183 Respondent Chairman Cesar S. Toledanes in favor of Respondent MERALCO, for being unconstitutional, illegal and for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction or authority;

(c) Nullifying Resolution No. 40, S-2009 date 2 September 2009 issued by the Barangay Council of Barangay 183, authorizing its Respondent Barangay Chairman Cesar S. Toledanes, to issue a clearance/permit to Respondent MERALCO to construct/install the high tension transmission lines that will traverse the entire stretch of 10th and 27th Streets, for being unconstitutional, illegal and for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction or authority; and

(d) Directing the Respondents MIAA and MERALCO to remove or cause the removal of the installed MERALCO posts and transmission lines along 10th, 12th and 27th Streets of Barangay 183, Zone 20, Villamor, Pasay City, at the expense of said Respondents.

Petitioners pray for such other reliefs as are just and equitable under the premises.

Makati City for the City of Manila, 11 November 2010.

ROQUE AND BUTUYAN LAW OFFICES

Counsel for Petitioners

Unit 1904 Antel 2000 Corporate Centre

121 Valero Street, Salcedo Village

Makati City 1227

mail@roquebutuyan.com

Tel. No. 02 887 4445/887 3894

Fax No. 02 887 3893

By:

H. HARRY L ROQUE, JR.

Roll No. 36976

PTR No. 2115877, 01.13.10, Makati City

IBP No. 499912, Makati City, Lifetime Member

MCLE Exemption No. III-001000, 04.26.10

DEXTER DONNE B. DIZON

Roll No. 54013

PTR No. 2115880, 01.13.10, Makati City

IBP No. 811903, 01.12.10, Laguna

MCLE Compliance No. III-0013474, 04.21.10

Copy furnished:

MANILA ELECTRIC COMPANY (MERALCO)

MERALCO Building

Ortigas Avenue, Pasig City

BARANGAY CHAIRMAN CESAR S. TOLEDANES

Barangay Hall