REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

FORMER SEVENTEENTH DIVISION

CA-G.R. SP No. 116742-UDK DECISION Page 2 of 25

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 G. PARAS, REMEDIOS Z. MORENO, MA. 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. ROMEROSALAS, MERCEDITA O. BELGADO, REV. FR. EDWIN E. 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,
*

CA-G.R. SP NO. 116742-UDK Members: DICDICAN, I. P., Chairperson, CRUZ, S. C., and * DIAMANTE, F. N., JJ.

Promulgated: 20 JAN 2011

Acting Junior Member per Office Order No. 237-10 RSF dated August 20, 2010.

CA-G.R. SP No. 116742-UDK DECISION Page 3 of 25

-versus-

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

DECISION
CRUZ, S. C., J.:

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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 Cases 1 following the installation and subsequent energization of low-frequency power lines of the Manila Electric Company (hereafter MERALCO) along 10 th, 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 MERALCO putting up power lines that pass along the perimeter concrete wall between Barangay 183 and Magallanes Village.

1 2

Effective April 29, 2010. Annex A, p. 38, Rollo. 3 Annex 41of MERALCO's Comment

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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.
4 5

id., Annex 2 id., Annex 3 6 id., Annexes 29-41

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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 8
7 8

Annex 44, MERALCO's Memorandum. Article II, Section 16 of the same 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.

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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 causeand-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
9 10

citing http://www.who.int/peh-emf/about/WhatisEMF/en/index.html, last accessed on December 5, 2010. id.

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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
11 12

id. Annex 37 of Comment 13 Sometime in December 2004, the operations of NAIA Terminal 3 was taken over by Manila International Airport Authority (MIAA) from PIATCO.

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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 order 14 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-10-03913CV15 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;
14 15

Id., Annex 6. Annex 47, MERALCO's Memorandum.

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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 Appeals 18 (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

16 17

Per Administrative Matter No. 09-6-8-SC G.R. No. 101083, July 30, 1993. 18 G.R. No. 110120, March 16, 1994.

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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:
19

(g) P.D. No. 1433, Plant Quarantine Law of 1978;(h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; (j) R.A. No. 4850, Laguna Lake Development Authority Act; (k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (l) R.A. No. 7076, Peoples Small-Scale Mining Act; (m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act; (o) R.A. No. 7942, Philippine Mining Act; (p) R.A. No. 8371, Indigenous Peoples Rights Act; (q) R.A. No. 8550, Philippine Fisheries Code; (r) R.A. No. 8749, Clean Air Act; (s) R.A. No. 9003, Ecological Solid Waste Management Act; (t) R.A. No. 9072, National Caves and Cave Resource Management Act; (u) R.A. No. 9147, Wildlife Conservation and Protection Act; (v) R.A. No. 9175, Chainsaw Act; (w) R.A. No. 9275, Clean Water Act; (x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and (y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development; Rules of Procedure for Environmental Cases Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. The rest being (b) to provide a simplified, speedy and inexpensive procedure for the enforcement of environmental rights and duties recognized under the Constitution, existing laws, rules and regulations, and international agreements; (c) to introduce and adopt innovations and best practices ensuring the effective enforcement of remedies and redress for violation of environmental laws; and (d) to enable the courts to monitor and exact compliance with orders and judgments in environmental cases.

20

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xxx

xxx

xxx

(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.

21 22

Under Rule 7, Part 3 of the Rules. See Section 1, Rule 7 of the Rules.

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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 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.

23

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 damage the same or any bridge, culvert, drainage ditch, road sign, or other appurtenance pertaining thereto.

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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 almost exclusively on the assertion that MERALCO's transmission 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.

24 25

pp. 13-17 of Petitioner's Memorandum. p. 39 of MERALCO's Memorandum. 26 Professional Regulation Commission vs. De Guzman, G.R. No. 144681, June 21, 2004. 27 Velarde vs. Social Justice Society, G.R. No. 159357, April 28, 2004 28 Philippine Crop Insurance Corporation vs. Court of Appeals, G.R. No. 169558, September 29, 2008.

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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
29 30

Exhibit I of the Petitioners' Memorandum. The tesla (symbol T) is the SI derived unit of magnetic field B (which is also known as "magnetic flux density" and "magnetic induction") 31 Exhibits J & K of Petitioners' Memorandum.

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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 danger32 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:
32 33

Exh. H of Memorandum. Ibid. 34 id.

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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.36 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 to
35 36

p. 3 of 5, Exh. J. id.

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cogitate between causation electromagnetic fields.

of

childhood

leukemia

and

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

37

WHO is the directing and coordinating authority for health within the United Nations system. It is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends. [ http://www.who.int/about/en/ ] 38 www.who.int/mediacenter/factsheets/fs263/en/index.html last accessed on January 14, 2011. 39 Ibid. 40 http://www.who.int/mediacentre/factsheets/fs322/en/ last accessed on January 13, 2011.

CA-G.R. SP No. 116742-UDK DECISION Page 19 of 25 addresses predominantly the effects of exposure to ELF magnetic fields.

While the study might have referred to ELF exposure as possibly carcinogenic41 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 16.7
According to WHO, this classification is used to denote an agent for which there is limited evidence of carcinogenicity in humans and less than sufficient evidence for carcinogenicity in experimental animals (other examples include coffee and welding fumes) [http://www.who.int/mediacentre/factsheets/fs322/en/] 42 Ibid. 43 http://www.icnirp.de/documents/StatementEMF.pdf 44 Per Letter of Agnette Peralta, Director IV, DOH-BHDT dated October 3, 2007, herein attached as Annex 37 of MERALCO's Memorandum. 45 Entitled Amendment to Implementing Rules and Regulations of Chapter XX- Pollution of the Environment of the Code on Sanitation of the Philippines (PD 856). 46 Presidential Decree No. 856.
41

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mG, 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
47 48

id., at 38. Exh. 111 & 112, 119 - 123 of MERALCO's Memorandum. 49 Exh. 116- 118 of MERALCO's Memorandum. 50 See Exhibit 110 under MERALCO's Memorandum. 51 Exh. 237-152 of MERALCO's Memorandum. 52 Table 3.4.5.3 (a) (1), Philippine Electrical Code 53 p. 19 of 29 of Petitioners' Memorandum.

CA-G.R. SP No. 116742-UDK DECISION Page 21 of 25

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
54 55

TSN, pp. 28-33, December 13, 2010. See Section 1, Rule 7 of the Rules. 56 2010 ed.

CA-G.R. SP No. 116742-UDK DECISION Page 22 of 25

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).57 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
57 58

See MERALCO's Comment, pp. 52-53; Annex 44, MERALCO's Memorandum. Public Interest Center vs. Roxas, G.R. No. 125509, January 31, 2007 citing Ashcom v. Westmont Borough, 298 Pa. 203, 208, 148 A. 112, 114. 59 ibid., citing 74 Am Jur. 2d, Taxpayers Actions, sec. 62

CA-G.R. SP No. 116742-UDK DECISION Page 23 of 25

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 lines, has complied with minimum standards set forth under existing environmental laws. Unless, so revised and or revoked, these certificates of compliance shall remain a source of authority to operate by respondent MERALCO. As such, no bases may be culled from any of petitioners' evidence to warrant the issuance of a Writ of Kalikasan. It has been the established rule in evidence that each party must prove his affirmative allegations.62 In the instance before Us, the burden of proof lies with petitioners. In failing to prove the causal link between the illnesses feared and the EMF generating from MERALCO's power lines, petitioners have, in fact, failed to discharge this evidentiary burden. We cannot simply rely on or invoke the precautionary principle as mandated under Section 1, Rule 20 of the Rules to uphold the averments of the petitioners. The latter provision states:
60 61

See Public Interest Center vs. Roxas, supra. id. 62 G & M (Phils.), Inc. vs. Cruz,G.R. No. 140495, April 15, 2005.

CA-G.R. SP No. 116742-UDK DECISION Page 24 of 25 Section 1. Applicability. - When there is a lack of full

scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

Note that the provision speaks of the lack of scientific certainty to establish the causal link between human activity and environmental effect, which means the the applicability thereof cannot stray far from the intendment of the second paragraph which pertains to the protection of the environment from the human activity as well as the upholding of the right of the people to a balanced and healthful ecology. WHEREFORE, premises considered, the instant petition for Writ of Kalikasan is hereby DENIED for lack of merit. SO ORDERED.

ORIGINAL SIGNED STEPHEN C. CRUZ Associate Justice WE CONCUR: ORIGINAL SIGNED ISAIAS P. DICDICAN Associate Justice ORIGINAL SIGNED FRANCHITO N. DIAMANTE Associate Justice

CA-G.R. SP No. 116742-UDK DECISION Page 25 of 25

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ORIGINAL SIGNED ISAIAS P. DICDICAN Associate Justice Chairperson, Former Seventeenth Division