Mt. Kanlaon, Its Myths and Wildlife, Painting by Masaste

Republic of the Philippines, REGIONAL TRIAL COURT

6^th Judicial Region, Branch _____, Bacolod City, Negros Occidental

Delia Ediltrudes S. Locsin, and 345 others, Plaintiffs vs. ENERGY DEVELOPMENT CORPORATION, PROTECTED AREA MANAGEMENT BOARD of MT. KANLA-ON NATURAL PARK, and JOSE LITO. ATIENZA, JR. as SECRETARY OF THE DEPARTMENT OF THE  ENVIRONMENT AND NATURAL RESOURCES, Defendants.

For Declaration of the Unconstitutionality of Certain Sections of R.A. 9154 and Presidential Proclamation 1005, and for Prohibitory Injunction with Prayer for Temporary Restraining Order.

________________

Plaintiffs are all citizens of the Republic of the Philippines and taxpayers. The minors represent their generation as well as generations yet unborn. This petition is filed as a class suit by the plaintiffs for themselves and others who are so numerous that it is impracticable to bring them all before the Court but they are entitled to the full benefit, use, and enjoyment of the natural resource treasure that is the country’s tropical forests or old growth primary forests with high biodiversity and the presence of threatened species.

Profile of Plaintiffs: about 290, including 84 or so children (hard to count). Petitions and signature campaigns with the signatures of more than 800 persons are annexed to the complaint.

I. Constitutional Issues:

a. Right to health and a balanced and healthful ecology -  Plaintiffs have a clear constitutional right to protection and promotion of their health (Section 15, Philippine Constitution) and to a balanced and healthful ecology in accord with the rhythm and harmony of nature (Section 16, Philippine Constitution).

The contested 169 hectare buffer zone is the habitat of several protected species based on the Wildlife Act and the area possesses all the characteristics of a strictly protected area as defined under the 1992 NIPAS law (R.A.7586). Instead of adding a protective layer to protect the MKNP from activities that will directly and indirectly harm the Natural Park, R.A. 9154, Sections 4 and 5 allow direct harm to 169 hectares of the park, opening the old growth forest therein to clearing, civil works, and operations that, in violation of plaintiffs’ constitutional rights, permanently deface the landscape and disturb the fragile ecological balance of the remaining protected areas of the park. Plaintiffs and generations yet unborn may be left with an island that is bare, barren, subject to destructive floods and droughts, and devoid of the wonderful flora, fauna and indigenous cultures with which Negros is abundantly blessed. The conversion also violates the plaintiffs’ inalienable right to self-preservation and self-perpetuation embodied in natural law.

b. Class legislation: R..A. 9154 provisions excluding the 169 hectares from the MKNP (Section 4) and declaring them a buffer zone for exploration, development, and utilization of geothermal energy resources as well as other exploration activities (Sec. 5) and giving PNOC-EDC automatic membership in the PAMB, Sec. 10 A(9), and in the Executive Committee of the PAMB, Sec. 10, B(8) were not part of the draft bill approved by the PAMB. Furthermore, the disestablishment of the 169 hectares as strict protected area was done in blatant disregard of the NIPAS procedure designed to safeguard plaintiffs’ constitutional right to health and a balanced ecology. The reduced MKNP area and the provisions being questioned were incorporated into R.A. 9154 for the benefit of and because of the lobbying of PNOC-EDC. These provisions therefore constitute class legislation violative of plaintiffs’ constitutional right to equal protection of laws. (Sec.1 of the Bill of Rights).

3. Natural Resources belong to the State- R.A. 9154 and management plans and regulations issued in connection with the development for geothermal energy of the buffer zone/MKNP, include no provisions that give the State as owner of our natural resources, an income from the trees, plants, animals, and minerals of commercial value that may be extracted from the buffer zone and the MKNP. The privatization of defendant EDC also effectively makes 169 hectares of the Natural Park private property of EDC. These violate the constitutional provisions on natural resources belonging to the state (Sec. 2, Art. XII).

4. Presidential Proclamation 1005 – unconstitutional.  PP 1005 which is the basis of R.A. 9154, set aside for geothermal development, 1,457 hectares of the Mount Kanlaon Natural Park without any prior DENR study, review, and report to the President as to the suitability or nonsuitability of its preservation as protected area and inclusion in the System according to the categories established in Section 3 of the NIPAS Law. This omission is contrary to the specific procedure laid down in the 1992 NIPAS LAW (R.A. 7586, Sec. 5), a procedure that is designed to protect the constitutional right of the Filipino people of present and future generations to a healthful and balanced ecology. Presidential Proclamation 1005 is therefore unconstitutional and cannot be a valid basis of R.A. 9154.

II. Invalid, Inapplicable, or Void ECC

EDC’s 1995 ECC authorizes EDC to develop a geothermal field consisting of 36 production and reinjection wells within a total development area of 220 hectares in sitios Hagdan, Pataan, and Catugasan.

Without an act of congress, the DENR has no power to authorize geothermal exploration or development within a natural park. DENR’s 1995 ECC is therefore valid only for geothermal development outside the original 24,557.6 hectare protected area of the MKNP. It is void or illegal with respect to the 169 hectares which were part of the protected area in 1995. In the unlikely event that R.A. 9154 provisions on the buffer zone are declared constitutional, a new Environmental Compliance Certificate based on a new Environmental Impact Statement that is site specific for development in the buffer zone must be obtained before EDC can legally proceed.

III. Act of Congress Required for EDC to exploit or utilize geothermal energy from within the MKNP.

Defendant EDC’s “PROPOSED DEVELOPMENT AND ENVIRONMENTAL MANAGEMENT PLAN for GEOTHERMAL ENERGY DEVELOPMENT within MKNP BUFFER ZONE” indicates that “the center of the geothermal resource is in the Jardin Sang Balo sector within the confines of MKNP.” EDC proposes to use directional drilling, where the geothermal well is curved from the vertical axis to as far as 1.5 kilometers, in order to reach the geothermal resource in the Jardin Sang Balo sector. The extraction and exploitation of geothermal energy from within the MKNP protected area may be allowed only through an act of Congress (Sec. 5, R.A. 9154 and Sec. 14, R.A. 7586) and the requirement may not legally be circumvented by drilling for geothermal energy within the protected area through wells pads in the “buffer zone.

IV. The tree cutting permit is void because issued for a project that is not authorized by law or though authorized by an unconstitutional law has no valid ECC.

V. Prayer: a temporary restraining order, declaration of the unconstitutionality of Sec. 4, 5, 10 A(9), 10 B(8) of R.A. 9154; declaration of unconstitutionality of the 1,475 hectare geothermal block in P.P 1005; declaration of the invalidity of the 1995 ECC for geothermal development in the buffer zone; voiding the DENR’s tree cutting permit; perpetually enjoining EDC from geothermal exploration and development in the buffer zone. Perpetually enjoining EDC from exploring, developing, and extracting geothermal energy resources within the protected area.

VI. The driving force behind this complaint is Green Alert and the Coalition to Save Mount Kanlaon.