ORIGINAL Republic of the Philippines SUPREME COURT Manila TORIBIO R. ORTEGA, JR., NESTORIO A. CASTRO, ROSALINA R. ARITMETICA, CHERYL L. MAGRACIA, ENVIRONMENTAL LEGAL ASSISTANCE CENTER (ELAC), INC., PHILIPPINE MOVEMENT FOR CLIMATE JUSTICE (PMCJ), INC., SANLAKAS, INC., and PHIL. EARTH JUSTICE CENTER (PEJC), INC., Petitioners, -versus- GR. No. [FOR: WRIT OF HON. ROY CIMATU, IN HIS CONTINUING CAPACITY AS SECRETARY OF MANDAMUS WITH THE DEPARTMENT OF TEMPORARY ENVIRONMENT AND NATURAL ENVIRONMENTAL RESOURCES (DENR) and PROTECTION HON. ALFONSO CUSI, IN HIS ORDER] CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), Respondents. x PETITION PETITIONERS, by counsel, to this Honorable Court respectfully state that: Prefatory Statement The Department of Energy (DOE) and Department of Environment and Natural Resources (DENR) are supposed to be the vanguards of energy security and environmental sustainability, Under the Renewable Energy Act, the DOE is mandated to reduce the country’s dependence on fossil fuels. Under the Clean Air Act, the DENR, through its EnvironmentalManagement Bureau, is mandated to strictly regulate the operations of coal-fired power plants because of the hazards they pose to the environment and to our health. While the Renewable Energy Act and Clean Air Act impose specific duties on the DOE and DENR to fulfil their respective mandates, both agencies have allowed coal plants to proliferate, making the country more, instead of less, dependent on fossil fuels. The DOE, in addition, has neglected its duty under the Renewable Energy Act to formulate Renewable Portfolio Standards Rules and to establish the Green Energy Options Program. The DENR, for its part, has neglected its duties to revise emission standards, designate attainment and non- attainment areas, prescribe effluent standards, and to administratively prosecute coal plants operating without the Continuous Emission Monitoring Systems (CEMS) and Continuous Emission Opacity Systems (COMS) as required by the Clean Air Act. As a direct result of the failure of DENR and DOE to do their duties specifically enjoined by law and their respective offices, the country has had to rely on dirty energy generated by coal plants that have been operating without proper standards, without accountability, and without regard to their adverse impact on the environment and the people’s health. Unless this Honorable Court intervenes, the Philippines will be locked in to costly and harmful coal contracts for generations to come, despite the existence of renewable energy that is cleaner, cheaper, and better. In addition to its obligations under national law, the Philippines, having ratified the Paris Agreement on Climate Change, has committed to undertake GHG (CO2e) emissions reduction of about seventy percent (70%) by the year 2030. Hence this petition, seeking the issuance of a writ of continuing mandamus to compel the DOE and DENR to perform acts that the laws specifically enjoin as duties resulting from their office, there being no other plain, speedy and adequate remedy in the ordinary course of law.IL Nature of Petition 1. Petition for Continuing Mandamus. ~ Pctitioners seek a writ of continuing mandamus under Rule 8 of the Rules of Procedure for Environmental Cases (A.M. 09-6-8-SC), to compel the respondents to perform the following acts which the law specifically enjoins as duties in connection with the enforcement or violation of environmental laws, rules and regulations, and/or of rights protected by such laws, rules and regulations: a. The Department of Environment and Natural Resources (DENR), to do its duty of regulating the operation of coal-fired power plants, by implementing and enforcing Sections 10, 12, 19, and 40 of the Clean Air Act (R.A. 8749) and the corresponding provisions of the Implementing Rules and Regulations of R.A. 8749; and b. The Department of Energy (DOE) to do its duty of promulgating the rules for Renewable Portfolio Standards (RPS) as mandated by Section 6 of R.A. 9513 and Rule 2, Section 4 of the Implementing Rules and Regulations of R.A. 9513; and establishing the Green Energy Option program mandated by Section 9 of R.A. 9513 and Rule 10 of the Implementing Rules and Regulations of R.A. 9513. 2. With application for a Temporary Environmental Protection Order. While this case is pending, and until the outmoded ambient air quality guideline values, emission standards for stationary sources, and effluent standards are updated, ambient air quality monitoring equipment are installed, non-attainment areas are designated in the vicinity of proposed coal plants, and RPS rules are issued, petitioners seek a Temporary Environmental Protection Order (TEPO) to restrain the DENR and its Environmental Management Bureau, and the DOE from (a) processing and granting Environmental Compliance Certificate (ECC) applications for coal plants, (b) issuing authorities to construct and permits to operate coal plants; and (c) issuing certificates of endorsement for coal plants.Il. Parties 3. Petitioners’ Capacity to Sue. (a) Petitioner TORIBIO R. ORTEGA, JR. is Filipino, of age, and resides at Aborlan, Palawan. (b) Petitioners NESTORIO A. CASTRO, ROSALINA R. ARITMETICA, CHERYL L. MAGRACIA are Filipinos, of age, and reside at Brgy. Lamao, Limay, Bataan. (c) Petitioner ENVIRONMENTAL LEGAL ASSISTANCE CENTER (ELAC), INC. is an environmental non- government organization committed to helping communities uphold their constitutional right to a healthful and balanced ecology. Its main office is located at Carlos Sayang Compound, Mitra Road, Barangay Sta. Monica, Puerto Princesa City, Palawan. ELAC is a duly registered with the Securities and Exchange Commission (SEC Registration No. 199700475). The Secretary’s Certificate attesting to the issuance of a Board Resolution authorizing ELAC to sue and litigate this case is attached to the Verification and Certification Against Forum Shopping of Petitioner ELAC at the end of this Petition. (d) Petitioner PHILIPPINE MOVEMENT FOR CLIMATE JUSTICE (PMC), INC. is a national coalition of organizations and individuals that campaigns against coal projects and promotes renewable energy. It holds office at 13 Mabait St., Teacher’s Village West, Quezon City 1101. PMCJ is duly registered with the Securities and Exchange Commission (SEC Registration Number CN 201315430). The Board Resolution authorizing PMC.J to sue and litigate this case and Secretary’s Certificate are attached to the Verification and Certification Against Forum Shopping of Petitioner PMCJ at the end of this Petition. (e) Petitioner SANLAKAS, INC. is a national multi-sectoral coalition and broad alliance of labor organizations, peasants, urban poor, youth, students, indigenous peoples, women, vendors, and communities affected by coal and mining projects. It holds office at 29-P Matimtiman St., Teacher's Village East, Quezon City 41101. SANLAKAS is duly registered with the Securities and Exchange Commission (SEC Registration No. AN094-003381). The Board Resolution authorizing SANLAKAS to sue and litigate this case and Secretary’s Certificate are attached to the Verification and Certification Against Forum Shopping of Petitioner SANLAKAS at the end of this Petition. () Petitioner PHIL. EARTH JUSTICE CENTER (PEJC), INC. is a non-stock and non-profit corporation duly registered under the laws of the Republic of the Philippines with principal office address at Mezzanine Building, University of Cebu, Banilad, Cebu City. PEJC provides legal assistance to victims of environmental injustice, conducts policy research on the environment, advocates policy reforms, assists in building local capacities for environmental protection and promotes sustainability and protection of human rights. The Secretary's Certificate attesting to the issuance of a Board Resolution authorizing PEJC to sue and litigate this case is attached to the Verification and Certification Against Forum Shopping of Petitioner PEJC at the end of this Petition. (g) All petitioners may be served with court processes and notices through undersigned counsel. 4. Respondents’ Capacity to be Sued. (a)Respondent HON. ROY CIMATU is being sued in his capacity as the Secretary of the Department of Environment and Natural Resources (DENR), a government agency mandated to implement the Clean Air Act and the Philippine Environmental Impact Statement System, among other environmental laws. The DENR may be served with summons and other court processes at the DENR Compound, Visayas Avenue, Diliman, Quezon City. The Environmental Management Bureau (EMB) is the principal office under the DENR that has jurisdiction over the grant of environmental compliance certificates (ECC) and the implementation of the Clean Air Act. SECRETARY CIMATU may be served with summons and othercourt processes at the DENR Compound, Visayas Avenue, Quezon City. (b)Respondent HON. ALFONSO CUSI is being sued in his capacity as the Secretary of the Department of Energy (DOE), a government agency mandated to ensure energy self-sufficiency and security and to implement the Renewable Energy Act. SECRETARY CUSI may be served with summons and other court processes at the Department of Energy, Energy Center, Rizal Drive, Bonifacio Global City, Taguig City 1632. Il. Facts 5, In 2008, when the Renewable Energy Act took effect, only 25.9% of the power generated in the Philippines came from coal; 32.2% came from natural gas, 33.9% from renewable energy, and 8% from oil.! ‘This is illustrated by the DOE pie chart below: Power Generation, by Source oi 3008 Netural Ges 8.0% es ae 2% wi OL mal Total: 60,821 6h Coal 17.6% felf-sufficiency: 67% 25.9% 6. Since then, however, coal’s share in the power mix has almost doubled, from 25.9% in 2008 to 47.7% in 2016 2 If this trend continues, a DOE undersecretary has projected that by 2030, coal’s share in the power mix will reach a whopping 70%. + https://www. statist 21 September 2015. 2https://www.doe.gov.ph/sites /default/files/pdf/energy_statistics/summary_2016_po wer statistics_final_march_27_2017.pdf 3 Transcript of Stenographic Notes, Senate of the Philippines, Committee on Climate Change, 9 June 2015, Hearing on Proposed Senate Resolution No. 1294 - United Nations Convention on Climate Change, CD Astrero, II-2, 10:51 am, p. 3; see also http://www.rappler.com/nation/95794-coal-power-plants-ph. Viewed 11 June 2015. 6 . Viewed on7. The steady increase in the country’s reliance on coal as a source of energy is also reflected in the fact that there are now 24 existing coal plant projects* in the country and 35 more in the pipeline, as shown by the list attached as Annex “A”. 8. Coal plants produce electricity by burning coal. In the process, they make use of large quantities of water to produce steam and to cool their turbines. As a consequence, coal plants release at least 84 hazardous air pollutants that are harmful to the health of human beings and dangerous to the environment. a. In 2016, the Harvard University, conducted a research study on the impacts of emissions coming from coal-fired power plants on Philippine air quality. The results show that from the current number of 960 premature deaths annually, the figure will rise to 2,410 premature deaths if new power plants are developed: “The data shows an estimated 960 premature deaths each year due to stroke, ischemic heart disease, other cardiovascular diseases and respiratory diseases. If the new power plants are to be developed, premature deaths may rise up to 2,410 or more than double the current number of people dying from coal-related pollution in the Philippines.”> A separate study conducted by Harvard University in the Visayas shows that “240 estimated coal- related deaths might reach as high as 650 deaths per year if the new power plants are constructed.”€ 4 The 24 coal plant projects correspond to 43 boiler units. The 35 coal plant projects in the pipeline correspond to 59 boiler units. Shttp://www.greenpeace.org/seasia/ph/PageFiles/718084/Coal A Public Health Crisi spdf. Accessed on 28 April 2017. 6 Ibid.9. To reduce the harmful effects of coal plants, the Clean Air Act (R.A. 8749) requires the DENR, through its Environmental Management Bureau, to regularly review and revise pollution standards, to monitor compliance, and to go after companies that do not adhere to these standards. The Clean Water Act, R.A. 9275, in addition, requires the DENR to prescribe effluent standards. And the Ecological Solid Wastes Management Act, R.A. 9003, requires the proper disposal of coal ash. The DENR and EMB, however, have failed and/or neglected to perform these acts, to the detriment of petitioners and the general public. a. The Clean Air Act requires the EMB to regularly review or revise emission standards and national ambient air quality guideline values.’ But these have never been revised since the Clean Air Act became law, except for particulate matter, where DENR adopted the World Health Organization’s (WHO) interim target only, but not the WHO air quality guideline.’ b. The EMB conducts air quality monitoring. But EMB’s National Air Quality Status Report for 2012- 2013 shows that not all cities and municipalities hosting coal plants have ambient air quality monitoring stations.? c. The Clean Air Act requires the DENR through the EMB to designate non-attainment areas where pollutants have exceeded the air quality standards, but none have been designated. d. The Clean Air Act also mandates the DENR to institute proceedings against coal plants violating the Clean Air Act and its rules and regulations, but DENR has not filed any actions against coal plants operating without Continuous Emission Monitoring Systems (CEMS). ¢. The Clean Air Act, in addition, requires the DENR, through the EMB, to prepare and implement a 7 Rep. Act No. 8749 (1999), sec. 12. 8 DENR-EMB National Air Quality Status Report 2012-2013, p. 17; see Annex “B”. 2 Ibid.national plan on Reduction of Greenhouse Gas Emissions together with concerned agencies and local government units, within one year from the effectivity of the Implementing Rules and Regulations." 17 years after the IRR was issued in 2000, no national plan on reduction of greenhouse gas emissions has been crafted. . The Clean Water Act!! requires the DENR to review and revise water quality guidelines and effluent standards, but no review and revision has been made. The effluent standards under the Clean Water Act still use the water quality criteria and effluent standards in DENR Administrative Order Nos. 34 & 35, which were issued way back in 1990. . The DENR and EMB even lack regulation on water intake structures. When coal plants pump in large volumes of water through cooling water intake structures, they also pull in fish, plankton and other aquatic organisms, which are killed or injured by heat, chemicals, and physical stress. In the United States, the Environmental Protection Agency (EPA) regulates cooling water intake to reduce these negative impacts.!2 . They also lack specific regulations for ash disposal. Coal plants dispose their coal ash in ash ponds. As coal ash are considered industrial wastes, they are therefore covered by the Ecological Solid Waste Management Act, and it follows that the ash ponds where coal plants dispose their wastes should be subject to the rules and regulations of a sanitary landfill. But coal plants cut corners and even dispose their coal ash in just about any vacant lot as what happened in Naga City, Cebu,3 sans any linings to prevent leachate from contaminating groundwater and soil cover after each daily 10 See Note 7, supra at sec. 31; see also DENR AO No. 2000-81, Rule XL, section 31. 11 Rep, Act No. 9275 (2004), sec. 19 (e), (f),and (q). * Cooling Water Intakes /water.epa.gov /lawsregs/lawsguidance /ewa/316b/ 13 http:/ /cebudailynews.inquirer.net/28705 /cement-plant-recycles-naga-coal-ash . Viewed on 8 June 2015 9dumping as required under the Ecological Solid Waste Management Act.!¢ i, The Department of Health (DOH) is well aware of the health and environmental impact of coal dust and ashes. On 27 July 2010, it issued an advisory's on coal contamination and pollution when a barge loaded with 8,000 metric tons of coal ran aground in Nasugbu, Batangas. The DOH warned that: 1. Coal dusts and ashes can. contaminate surface waters and poison aquatic environment; 2. Toxic elements like arsenic, mercury, etc. can be mobilized from the coal dust and can be diluted in the downstream river water, and high concentrations of these metals in river sediment could pose a serious long-term threat for fish populations and aquatic ecosystems. 3. Coal dusts may contain toxic elements. The smaller the particulate, the higher the concentration of trace metals it contains, and could potentially have adverse impacts to communities and among those with existing health conditions such as asthma and other respiratory ailments.'¢ 10. To reduce the country’s dependence on fossil fuels as a source of energy, the Renewable Energy Act requires the DOE to formulate rules for Renewable Portfolio Standards which would then be used to require electricity suppliers to source an agreed portion of their energy supply from eligible renewable energy resources.!7 The Act also requires the DOE to establish a Green +4 Rep. Act No. 9603 (2000), sec. 41. 18 DOH Department Memorandum No. 2010-0184. 16 Ibid. 17 Rep. Act No. 9513 (2008), sec. 6. 10Energy Option program to allow end-users to choose renewable energy resources as their sources of energy.' The DOE, however, has failed and/or neglected to perform these acts, to the detriment of petitioners and the general public. 11. Harms suffered by individual petitioner Castro. Petitioner NESTORIO A. CASTRO has been a resident of Limay, Bataan for over 40 years. Limay, Bataan is the site of the coal plant of the Bataan Refinery Corporation (BRC) which started operating in 2013. It is also the site of a new coal plant of San Miguel Consolidated Global Power. Before 2013, Mr. Castro hardly experienced asthma attacks. But since the BRC coal plant started operating in 2013, Mr. Castro has has had frequent asthma attacks almost every week. He has also experienced difficulty in breathing. Since 2013, his roof corrodes easily and his skin has become itchy. Water from a spring that the community used has stopped flowing and the spring has dried up when it used to be overflowing. The noise from the coal plant has made it hard for the residents to sleep. And the coal plant emits a fetid odor that sometimes becomes unbearable, causes headaches, and makes the children in his community sickly. The judicial affidavit of Mr. Castro is attached to this Petition as Annex “C”. 12. Harms suffered by individual petitioner Aritmetica. ROSALINA R. ARITMETICA has been residing at Limay, Bataan for 64 years. In addition to the effects related by petitioner CASTRO, Ms. Aritmetica said in her judicial affidavit (Annex “D”) that ever since the ash from the coal plant started to fall in Limay, it sticks even to their clothes and makes them itchy; that many residents in her community are coughing; that their environment is polluted and has so much ash that has to be swept and cleaned. Ms. Aritmetica also disclosed that on December 22, 2016, the coal ash storage of the two coal plants emitted a deluge of coal dust which continued until December 31, 2016; that she complained to the barangay captain but nothing happened; that they then appealed to the media and the issue became national news until January 2017; that due to the media exposure, the 18 Id atsec. 9.DENR regional office convened a multi-partite monitoring team and technical conference, and told her that they will release a Cease and Desist Order; and that they will remove the EMB regional director because he was not doing his job; but none of these things happened. The statements of Mr. Castro and Ms. Aritmetica are corroborated by the judicial affidavit of the third individual petitioner, Ms. Cheryl L. Magracia, which is attached to this Petition as Annex “E”. 13. Account of witness Dominador Basaya, Jr. Mr. Basaya, 62, has been residing at South Poblacion, City of Naga, Cebu since birth. Naga City is the site of two coal plants: the National Power Corporation (NPC) Thermal Coal Plant, now owned by the Salcon Power Corporation (SPC); and the coal plant owned by the Korean Electric Power Corporation (KEPCO). The NPC coal plant began operating in the 1980s, while the KEPCO coal plant began operating in 2011. Mr. Basaya, who lives about a kilometer away from the coal plants, related in his judicial affidavit (Annex “F”) the effects of the coal plants on his community. These effects are quite similar to the effects of the coal plants in Limay, Bataan described by petitioners Castro, Aritmetica and Magracia. They include Joud noise that makes it hard to sleep at night; a lot of coal dust and ash emitted from the coal plants that are being inhaled by the residents and which forced some residents to use umbrellas inside their homes during meals; cough, cold, and itchy skin; and indiscriminate dumping of coal ash. Despite a report from the Asian Development Bank which found that mortality and morbidity rates in Naga City are higher than national averages, the coal plants, according to Mr. Basaya, are still operating. 14, Affidavit of expert witness Dr. Mark Chernaik. Dr. Chernaik holds a doctoral degree in biochemistry from Johns Hopkins University School of Hygiene and Public Health and a law degree from the University of Oregon School of Law. He has been a member of the Oregon State Bar since 1993. Since 1992, he has served as staff scientist for the Environmental Law Alliance Worldwide (ELAW), an international network of public interest environmental lawyers and scientists. As an expert on environmental issues, many courts have relied on Dr. 12Chernaik’s scientific opinions in resolving environmental cases, including the following: (a) the European Court of Human Rights in its landmark decisions in Fadeyeva v. Russia (2005) and Dubetska v. Ukraine (2011); (b) the Supreme Court of India in M.C. Mehta v. Union of India (1999); (c) the Supreme Court of Pakistan in Shehla Zia v. WAPDA (1994); and (d) the Supreme Court of Belize in Belize Institute for Environmental Law v. Department of Environment (2008). 15. Dr. Chernaik’s qualifications are detailed in his attached affidavit (Annex “G”). In addition to his academic credentials, he has authored peer-reviewed articles, including an article published in 2014 entitled “Air concentrations of volatile compounds near oil and gas production: a community-based exploratory study” which was cited by the State of New York in its Decision of December 17, 2014 to prohibit hydraulic fracturing within the state. 16. Dr. Chernaik’s attached affidavit contains expert opinions that support the main allegations of this petition, particularly the allegations that the DENR and DOE have unlawfully neglected to perform duties specifically enjoined by law and by their respective offices. The contents of his affidavit are described in detail in the discussion portion of this Petition. 17. Judicial Affidavit of Petitioner ORTEGA. The judicial affidavit of petitioner TORIBIO ORTEGA, JR., a chemical engineer, is attached to this petition as Annex “H”, It relates his observations from his visit to the coal-fired power plant in Iloilo and its environmental impacts. 18. Demand Letters. Petitioners have long been demanding that the respondents comply and perform their statutory duties. As early as 2014, and again in 2016, petitioners sent demand letters to the DENR, EMB and DOE as follows: a. Demand Letter with Notice to Sue!® served on the DENR and EMB on 1 April 2014, demanding that DENR and EMB perform the following: 18 See Annexes “I” and “I-1” dated 31 March 2014. 13iii, iv. vii. |. Disclose review or revisions of emission and ambient air quality standards since 1999, if any; i. Disclose the equipment EMB offices use in ambient air quality monitoring and emissions monitoring of criteria pollutants and other regulated pollutants; Issue cease and desist order to coal-fired power plants operating without Continuous Emissions Monitoring System; Issue a cease and desist order for coal power plants undergoing construction and ECC processing pending review of standards and acquisition of pollution monitoring equipment, and the submission of the air quality action plan of the host LGUs; Issue and implement a circular requiring coal- fired power plants to upload self-monitoring reports on their websites; Craft the Green House Gas Reduction Plan together with the LGUs; Ensure establishment and functioning of air shed boards all over the country, especially where polluting industries like coal power plants and cement factories operate; and Comply with the agency’s responsibilities under EO 131, RA 9003, RA 8749, RA 9275, RA 9729, RA 10121, EIA System and other pertinent laws. b, The reply from the DENR Sccretary’s Office dated 2 April 2014 states that the demand letter was referred to the Head Executive Assistant Office, but no subsequent reply has been received. 14c. The EMB, on the other hand, replied on 9 May 2014.20 The salient points of their reply are as follows: 1. On revision of air quality standards, they admitted that no revisions have been made on National Air Quality Guideline Values, National Ambient Air Quality Standards for Source Specific Pollutants from Industrial sources and Emission standards for stationary sources. 2. EMB disclosed that the DENR issued DAO 2013-13 “Establishing the Provisional Guideline Values for PM2.5”. 3. As to the equipment they use in air quality monitoring, they merely stated that these are prescribed in the Clean Air Act, but failed to disclose whether their offices have and actually use such equipment. 4. They claimed that they could not issue a cease and desist order for coal plants without Continuous Emissions Monitoring Systems since they have to follow the procedure laid down by their own rules. They claim that only the Pollution Adjudication Board (PAB) can issue the CDO. 5. They also claimed that the Green House Gas Reduction Plan is an on- going project with the USAID and the LGUs called the Green House Gas Inventory and Management Plan. d. The demand letter to DOE was sent to former Secretary Carlos Jericho L, Petilla of the Department of Energy and then Chair Pedro 20 See Annex “J”, dated 9 May 2014. 15Maniego Jr. of the National Renewable Energy Board dated 30 April 2014.2! Both agencies were requested to provide Petitioners (and the public, by uploading in the DOE website), within five days from receipt of this letter, the following: 1) The minimum percentage of generation from eligible renewable energy resources as required in Section 6 of the Renewable Energy Act; 2) The status of implementation and levels of achievement of the 2011-2030 National renewable Energy Plan, absolute values of power generation from renewables as against fossil fuel sources, any modifications thereto or steps to update it, particularly to increase the renewable share in the energy mix; 3) Updated status of renewable energy projects as approved; and 4) Any established minimum RE generation capacities in off-grid areas especially in areas where coal energy development is in the pipeline. They were also asked to perform the following within 30 days from receipt of the letter: 5) Disclose any problems and issues that block the fulfillment of your mandate or the possibility of not meeting targets, if any; 6) Categorically state whether or not there are projected increases in percentages of RE as against non- renewable energy sources and plans or projections to narrow the gap; 21 See Annex “K”, dated 30 April 2014. 167) Any cost benefit analysis undertaken between renewable energies and coal that guides decision-making. e. On 5 May 2015, Mr. Maniego Jr. replied and addressed some of the questions and said that he will convene the NREB Legal Committee to draft a formal reply. Until now, no formal reply has been made. f. In his letter, Mr. Maniego stated that the NREB had already submitted the draft Renewable Portfolio Standards to the DOE in December 2011. Regarding the National Renewable Energy Program (NREP), he stated that renewable energy targets in the NREP “could not even maintain the current renewable energy sources in the power mix.” Lastly, he said that he is against construction of more coal plants “because of the pass-through costing allowed under their power supply agreements, their higher costs per kWh in the medium to long term, and the negative impacts of these plants on the environment.” A true copy of Mr. Maniego’s letter is attached to this petition as Annex “L”. g. The Department of Energy received the demand letter on 2 May 2014, but they did not bother to reply. h. The petitioners sent another demand letter to the DENR on 26 October 2016. A true copy of this letter is attached to this petition as Annex “M”. i, Petitioners also sent a second demand letter to the DOE on 12 December 2016. A true copy of this letter is attached to this petition as Annex “N”. 19, In addition to the above-mentioned letters, petitioners also requested the DENR-EMB regional offices to issue certifications stating whether or not the coal plants in their respective regions had installed the Continuous Emission Monitoring System (CEMS) and Continuous Opacity Monitoring System (COMS) required by the Clean Air Act. A true copy of the letter dated 9 January 2015, 17sent to the DENR-EMB Region VI office is attached to this petition as Annex “O”. A true copy of the reply from the EMB Region VI dated 3 February 2015 acknowledging receipt of petitioner's letter is attached to this petition as Annex “0-1”, Similar letters were sent to other DENR- EMB regional offices in Regions 1, 3, 4A, 4B, 6, 7, and 10 by private courier, as shown by Annex “P”. 20. In response to petitioners’ request, DENR-EMB regional offices in Region I, VI, and X issued certifications, which are attached to this petition as Annexes “Q”, “Q-1” and “Q-2”. GROUNDS FOR CONTINUING MANDAMUS ee The DENR unlawfully neglected its duty to review and update the national air quality guideline values and emission standards for stationary sources as required by sections 12 and 19 of the Clean Air Act. IL. The DENR unlawfully neglected its duty to designate attainment and non-attainment areas as mandated by Section 10 of the Clean Air Act and Rule VIII, Section 1 of the Implementing Rules and Regulations. Il. The DENR unlawfully neglected its duty to take action against coal-fired power plants operating without continuous emission monitoring systems (CEMS) and continuous emission opacity systems (COMS) as required by 40 of the Clean Air Act in relation to Rule XXV, section 5 (Ja of the Clean Air Act IRR and continuous emission opacity systems (COMS) as required by DAO No. 2007-22, Section 3 (a). Iv. 18gi; The DENR unlawfully neglected its duty to review and set effluent standards as mandated by Section 19(f) of the Clean Water Act. ¥. The DOE unlawfully neglected its duty to reduce fossil dependence as mandated by sec. 5(a) of the Renewable Energy and to achieve energy self-reliance as mandated by Section 2 of the DOE charter. VI. The DOE unlawfully neglected its duty to formulate the rules for Renewable Portfolio Standards as mandated by Section 6 of the Renewable Energy Act and Section 4, Rule 2 of the Act’s implementing rules and regulations. VII. Petitioners are personally and directly aggrieved by DENR and DOE’s unlawful neglect of their public duties. DISCUSSION I. The DENR unlawfully neglected its duty to review and update the national air quality guideline values and emission standards for stationary sources as required by sections 12 and 19 of the Clean Air Act. Coal plants are classified as “stationary sources” under the Clean Air Act. Since coal plants burn coal to generate electricity, they emit pollutants into the air. As such, they are covered by the following standards set by the Clean Air Act: (1) Ambient Air Quality Guidelines for Criteria Pollutants; (2) Ambient Air Quality Standards for Source Specific 1922. 23. 24, Pollutants; and (3) Emission Standards for Stationary Sources. Ambient Air Quality Guidelines and Standards. Section 12 of the Clean Air Act imposes on the DENR the duty to “review or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standards necessary to protect health and safety, and general welfare.” The implementing rules of the Clean Air Act reiterate this duty and provide that the DENR’s Environmental Management Bureau (EMB) must review Ambient Air Quality Guidelines on a routine basis: Section 2 [Rule VII]. Review of Air Quality Guideline Values: The Department through the Bureau shall, on a routine basis, in coordination with other concerned agencies and programs such as the National Research and Development Program for the Prevention and Control of Air Pollution, review the list of Hazardous Air Pollutants and Guideline Values and recommend to the Secretary of the Department the revision thereof whenever necessary to protect public health and safety, and general welfare, consistent with the requirements of Rule XVII, Section 3.22 The Clean Air Act, which took effect in1999, contains the initial list and values of hazardous air pollutants. Since 1999, however, except for particulate matter, the DENR has not reviewed or revised and published the list of hazardous air pollutants with corresponding ambient guideline values or standards mandated by the law. The use of the word “shall” in section 12 of the Clean Air Act and Section 2, Rule VII of its implementing rules indicates that the duty to review, revise and publish annually ambient air quality standards is in the nature of a statutory command. The Clean Air Act does not give the DENR and EMB discretion not to review, revise and publish these 2 Clean Air Act, Implementing Rules and Regulation, Rule VII, Sec. 2. 20standards. The duty imposed on them is ministerial and may be compelled by mandamus. 25. The review, revision, and publication of hazardous air pollutants are vital in regulating coal-fired power plants, which account for a substantial portion of airborne pollutants that go deep into the lungs and cause lung cancer, strokes and respiratory diseases. 26. Pollution standards are the foundation for regulating pollution. If standards are below par, air quality and pollution monitoring would be futile exercises. This is especially critical for coal-fired power plants, because they emit at least 84 air pollutants that are hazardous to human health and the environment. In a report commissioned for the American Lung Association, experts from the Environment Health & Engineering Inc. compiled these pollutants with their corresponding impact on health and the environment: Toxicological and Environmental Properties of Hazardous Air Pollutants (HAPs) Emitted from Electric Generating Stations Fueled by Coal. Class of __| Notable Human Health | Environment HAP HAPs Hazards al Hazards Hydrogen Invitation to skin, [ATA precipitation, Acid Gases | SHlotide, eye, nose, throat, | FACE A} Hyd breath: 7 ydrogen reathing Cealaae fluoride passages. ropes Probable Deposits into | carcinogen: soft- | rivers, lakes | tissue sarcomas, | and oceans everest 2,3,7,8- | lymphomas, and | and is taken and Furans | t@ttchlorodi | developmental —_| up by fish and oxin (TCDD) | problems, wildlife. damage to the —_| Accumulates immune system, | in the food and interference | chain. _ 23 USEPA 2007 in Environment Health & Engineering Inc. 2011. Emissions of hazardous air pollutants from coal-fired power plants, p. 10 241d. 2COLLIE with hormones Damage to the | taken up by brain, nervous Boh ond system, kidneys |S" = Mcthylmercu A wildlife. Mercury |, and liver. Causes ARCURRULAtES neurological and | 5" the food developmental baluae birth defects. : Carcinogen: lung, bladder, kidney, : alin. Mey Accumulates Non- Arsenic, adversely affect |i tne coil and Mercury | beryllium, _| learning, memory | "2ainents, Metals and | cadmium, | and behavior. Soluble — Metalloids |chromium | May cause ba (excluding | nickel, cardiovascular | Pe nate radioisotop | selenium, _| and kidney ee es) manganese | effects, anemia eee and weakness of | ; the ankles, wrists and fingers. Damages the developing Harms plants nervous system, | and wildlife; may adversely | accumulates affect learning, | in soils and Lead memory, and sediments. behavior. May __| May adversely | cause affect land cardiovascular _| and water and kidney, and | ecosystems. testes. Probable carcinogens. May Naphthalene, benzo-a- ee ee Exists in the anthracene, Polynuclear | benzo-a- matter and | vapor or yEuS deposit in the particulate Aromatic _| pyrene, ‘ lungs. May have | phase. Hydrocarbo | benzo-b- ; adverse effects to | Accumulates ns (PAH) flouranthene fi . e 3 chrysene, | the liver, kidney | in the soil and uf > land testes May _| sediments. dibenzo-a- anthracene | @mage sperm cells and cause impairment of 22reproduction. Carcinogen: lung Deposits into rivers, lakes and oceans and is taken eer and bone. up by fish and AMOISOLOP | Radium Bronchopneumo | wildlife. i nia, anemia, Accumulates brain abscess _| in soils, sediments, and in food I chain. Carcinogen: lung and lymphatic Uranium | system. Kidney disease. May cause irritation of the skin, eyes, nose and throat; Degrade giftcalty: through breathing: chemical impaired function Ene of the lungs; reactions in Aromatic delayed response me sees ! Hydrocarbon | to a visual P Volatile y ’ : and o s including _| stimulus; u ganic | Pane need contribute to Compound * carbon-based toluene, memory; : s radicals that ethylbenzene | stomach Sadia , xylene discomfort; and | fOr oe effects to the liver Agel and kidneys. May | SOunc-level a ozone and its 2. SABE human health adverse effects to | Paes the nervous i system. Benzene is a known carcinogen. Probable Aldehydes | carcinogen: lung including | and formaldehyd | nasopharyngeal e cancer. Eye, nose, and 23throat irritation, respiratory symptoms. 27. 28. 29. 25 Annex “G”, Chernai As expert Dr. Mark Chernaik declared in his attached affidavit (Annex “G”): 6. A: Our collective understanding of how exposure to pollutants in ambient air affects human health is constantly evolving. The more we study human populations exposed to impaired air quality, the more we learn about the quantitative relationships between pollutant concentrations, exposure durations, and adverse health effects...[Ambient Air Quality] Guideline Values need to be routinely updated to reflect the most recent scientific understanding of how air pollution affects human health.”> As stated earlier, except for particulate matter, the Ambient Air Quality Guidelines Values have not been revised since the Clean Air Act took effect in 1999. And while the DENR has updated its standards for particulate matter, these standards fall way below the standards set by the World Health Organization (WHO) and the Environmental Protection Agency of the United States (U.S. EPA), among others. Particulate matter. It has now been scientifically established that pollutants consisting of very fine particulate matter [less than 2.5 microns in diameter (PMz.5)] such as those found in smoke and haze, penetrate deeper into the lungs and cause a disproportionate share of health effects such as lung cancer, strokes, and respiratory diseases. Coal plants emit a substantial amount of particulate matter. Despite these harms, the Philippines lacks standards for exposure to PM2.s. While the DENR issued Department Administrative Order (DAO) 2013-13 as Provisional National Ambient Air Quality Guideline values for PMp,s, the Order expressly provides that it is not for “compliance purpose”. The following table, moreover, shows 24the air quality guideline values for PMz.s: Pollut | Short-term (') Long-term (?) Implementatio ant —[ig/Neu | Averagi | ng/Ncu | Averag |" Period ‘m. ng time |.m. ing Ti time l PM25|75() | 24 35() | 1 Year | Upon hours effectivity date of the DAO | until December 31, 2015 SO) | 24 25) [1 Year | January 1, hours 2016 [i] Maximum limits represented by ninety eight percentile (98%) values not to be exceeded more than once a year. [2] Annual Geometric Mean [3] These are provisional guideline values and shall be reviewed yearly to determine the course of action required or the next step. 30. DAO 2013-13 also claims to have adopted the WHO standard for PMz.s, but as pointed out in Dr. Chernaik’s attached affidavit (Annex “G”), DENR Order 2013-13 standard is way below the WHO standard: By comparison, the Philippine Clean Air Act has no standard for exposure to PMs. Xxx By terms of Section 3 of DENR Order 2013-13, the Provisional National Ambient Air Quality Guideline values for PM2.s “aims to protect health ... by adopting the World Health Organization (WHO) guidelines.” However, Section 3 of DENR Order 2013-13 has clearly not adopted the WHO guidelines for PMa.s, which are as follows: PM, 10 pg/m? annual mean 25 pig/m3 24-hour mean 2 Section 2. (http://server2.denr.gov-ph/uploads/rmdd/dao-2013-13.pdf) 28Starting in 2016, the Philippine Ambient Air Quality Standards for PM25 will be consistent with the WHO Interim Target 2 values for PM25. However, adoption of the WHO Interim Target 2 annual value for PM2s would allow for a 9% higher mortality risk relative to the WHO Air Quality Guideline Value of 10 ug/m3 and that adoption of the WHO Interim Target 2 24- hour value for PM2.s would allow for a 2.5% increase of short-term mortality relative to the WHO Air Quality Guideline value of 10 ug/m3.2? 31. The table below compares ambient quality guideline values for PM2.s among the WHO, U.S. EPA and EMB: WHO US EPA PH EMB (By 2016) 25 ng/m? 24-hour | 35 yg/m> 24-hour | 75 pg/m* 24-hour mean mean mean 10 pg/mF annual |12yg/meannual | 35 pg/m? annual mean mean mean ‘These figures show that ambient air quality guidelines in the Philippines are way behind that of the US EPA and WHO guidelines, because the higher value denotes a less stringent standard. 32. Sulfur Dioxide. Dr. Chernaik also points out in his affidavit that the standard used by the EMB in evaluating sulphur dioxide - 24-hour exposure ~ is not in accord with current scientific studies and will not protect the public from adverse respiratory effects of sulphur dioxide emitted by coal plants: Second, regarding exposure to sulfur dioxide (SO2), the U.S. EPA regulates very short-term (hourly) exposures that are associated with incidents of asthma, with a new hourly standard of 75 parts per billion (ppb) that was last updated in June of 2010. According to the U.S. Environmental Protection Agency: p.8-9. 27 Annex “t 26“Current scientific evidence links short-term exposures to SO2, ranging from 5 minutes to 24 hours, with an array of adverse respiratory effects including bronchoconstriction and increased asthma symptoms. These effects are particularly important for asthmatics at elevated ventilation rates (e.g., while exercising or playing).” (http: / /www.epa.gov/airquality /sulfurdioxide /health.html] By contrast, the Philippine Clean Air Act has no hourly standards. It only has a 24-hour standard for SOz (of 70 ppb), which would not protect the public against short-term spikes of SO2.?6 The table below compares ambient quality guideline values for sulfur dioxide between the U.S. EPA and the Philippines: US EPA PH EMB (By 2016) 75 ppb 1 hour 70 ppb 24-hour 33. Nitrogen Oxide. On nitrogen oxide, while the WHO and U.S. EPA have revised their standards to regulate hourly exposure to protect the public, the DENR-EMB still regulates nitrogen oxide by the 24- hour standard:?9 Third, regarding exposure to nitrogen dioxide (NOa), the U.S. EPA regulates very short-term (hourly) exposures that are associated with respiratory effects including airway inflammation in healthy persons and asthma attacks in persons with asthma by an hourly standard of 100 parts per billion (ppb) that was last updated in February of 2010. By contrast, the Philippine Clear Act has only a 24-hour standard for NO2 (of 80 ppb = 150 pg/m%), which would not protect the public against short-term spikes of NO». The World Health Organization standards for NO» are as follows: 28 See Annex “G", p. 9. 2 Idat p.8-9, 27No, 40 g/m? (37.5 ppb) annual mean 200 jig/ms (187.5 ppb) 1-hour mean The following table illustrates how much EMB’s standards have lagged behind WHO and U.S. EPA: WHO US EPA PH EMB 187.5 pbb I-hour 100 ppb 1-hour __| 80 ppb 24-hour mean mean mean 34, Lead. For lead, which causes neurotoxic health effects to children and adults, EMB guideline values for medium term exposure are 10 times less stringent compared to the U.S. EPA standards and twice as lax compared to WHO standards for long term exposure: Fourth, regarding exposure to lead, the U.S. EPA standard for medium-term (rolling three- month average) exposure to lead is 0.15 yig/m° for the protection of children and adults from neurotoxic health effects caused by lead. By contrast, the standard in the Philippine Clean Air Act is 1.5 jg/m® for a three-month averaging period — 10 times less stringent than the U.S. EPA standard. The WHO standard for long-term (annual) exposure to lead is 0.5 g/m°. By contrast, the standard in the Philippine Clean Air Act is 1.0 g/m? for an annual averaging period — 2 times less stringent than the U.S. EPA standard.s° The table below compares the standards on lead: WHO US EPA PH EMB (By 2016) 0.15 pg/m® three. | 1.5 pg/m three- month mean month mean 0.5 pg/m? annual 1.0 pg/m? annual mean. mean 30 See Annex “G”, p. 10. 2835. The foregoing illustrate that our 15-year-old National Ambient Air Quality Standards are outdated. The DENR and EMB have unlawfully neglected their duty to revise the standards as mandated by the Clean Air Act, and to protect the public from harmful pollutants. 36. Emission Standards for Stationary Sources. The emission standards for stationary sources set “the limit on the acceptable level of pollutants emitted from a stationary source for the protection of the public’s health and welfare.”3! Under the Clean Air Act, coal plants and other stationary sources are required to conduct self-monitoring of their emissions based on the standards set by the DENR, and to submit quarterly reports to the EMB. 37. As Dr. Chernaik points out in his attached affidavit, these emissions standards for stationary sources must also be reviewed and revised regularly as required by the Clean Air Act: As in the United States and in other jurisdictions, emission standards for pollution from stationary sources is based on application of the Best Available Control Technology, appropriately defined in the Implementing Rules and Regulations for the Philippine Clean Air Act as: “techniques or equipment which when used, result in lower air emissions but in a cost-effective manner.” What is the Best Available Control Technology for pollution from a stationary source also constantly evolves, as new control technologies are invented or as existing control technologies become more affordable because of innovations in pollution control device manufacturing. If emission standards are not regularly updated, then such standards would eventually fail to limit pollutant emissions based on techniques or equipment which when used, result in lower air emissions but in a cost-effective manner. The table below shows our standards under the Clean Air 31 Rep. Act No. 8749 (1999), sec. 19. 2 Annex "G’, p. 23. 2Act:33 Pollutants | Standard Maximum | Methods of Applicable | Permissible | Analysis* to Limits Source (mg/NCM) 1. Antimony [Any source | 10 as Sb ‘AAS? and its compounds 2. Arsenic | Any source | 10 as As AAS? and its compounds 3, Cadmium | Any source | 10 as Cd ‘AAS? and its | compounds 4, Carbon | Any 500.asCO | Orsat Analysis Monoxide | industrial Source 5. Copper | Any 100asCu | AAS® and its industrial compounds __| Source 6 Any source | 50 as HF | Titation with Hydrofluoric | other | Ammonium Acid and | than the | Thiocyanate Fluoride | manufacture of compounds | Aluminum from Alumina 7. Hydrogen | i) oa Cadmium Sulfide | Geothermal Sulfide power e Method plants ii) Geothermal | 7 as H2S Cadmium Sulfide exploration Method and well- testing iii) Any 33 Rep. Act No. 8749 (1999), sec, 19. 30source other than () and (ii) 8. Lead Any trade, | 10 as Pb ‘AAS? | industry | or process 9. Mercury |Any source |5as AAS®/Cold- elemental Hg | Vapor Technique or Hg Analyzer 10. Nickel [Any source | 20 as Ni AAS* and its compounds, except Nickel 11 Carbonyl! 12. NOx i) 2,000 as Phenol- Manufacture | acid and NOx | disulfonic of Nitric Acid | and acid Method calculated as ii) Fuel No2 Phenol- burning disulfonic steam acid Method generators 1,500 as Noz Existing Source 1,000 as Noz 500 as Noz New Source © Coal- fired Phenol- © Oil-fired disulfonic | acid Method iii) Any | source | other 1,000 as No | than (i) 500 as Noz | and (ii) 31Existing source New Source 13. Any source [200 as P,05 | Spectrophotom Phosphorus etry Pentoxide® 14. Zinc and |Any source [100asZn | AAS® its compounds Provided, that the maximum limits in mg/nem particulates in said sources shall be: 1. Fuel Burning Equipment a) Urban or Industrial Area 150 mg/Nem b) Other Area 200 mg/Nom 2. Cement Plants (Kilns, etc.) 150 mg/Nem 3. Smelting Furnaces 150 mg/Nem 4. Other Stationary Sources 200 mg/Nem Provided, further, That the maximum limits for sulfur oxides in said sources shall be: (1) Existing Sources (i) Manufacture of Sulfuric Acid and oa N Sulf(on)ation Process SOs (i) Fuel burning }-58™-N Equipment aun SO2 (iii) Other 1.0gm.N Stationary cm as Sources SOs (2) New Sources () Manufacture of 1.5 Sulfuric Acid and gm.Nem Sulf(on)ation as SOs 3238. 39. 34 Ibid Process il _ OF Ge Bone ED! as SO2 (iii) Other 0.2 Stationary gm.Nem Sources* as SOs Since the Clean Air Act became law in 1999, these standards have never been reviewed nor revised—despite the duty imposed on the DENR by Section 19 of the Clean Air Act to review or revise emission standards every two years: The Department shall, within two (2) years from the effectivity of this Act, and every two (2) years thereafter, review, or as the need therefore arises, revise and publish emission standards, to further improve the emission standards for stationary sources of air pollution. Such emission standards shall be based on mass rate of emission for all stationary sources of air pollution based on internationally accepted standards, but not be limited to, nor be less stringent than such standards and with the standards set forth in this section.3* The duty to review, revise and publish emission standards, like the duty to review, revise and publish ambient air quality guideline values, is ministerial in nature and may be compelled by mandamus. As the EMB itself admitted in its reply to the petitioners’ Demand Letter and Notice to Sue, these emission standards have never been reviewed nor revised after the Clean Air Act became law: Since the start of the formulation/preparation of the CAA, the industry sector commented. that the emissions standards set forth in the CAA are very stringent but said comment was not considered by the concerned legislators. Consistent with the objective of the CAA (improvement of emission standards and air quality), revision of emission standards shall 33mean setting more stringent standards and with due consideration of the comments by the industry sector mentioned above the emissions standards have not been revised as of date.*> In other words, EMB did not review nor revise emission standards because the industry sector believes that the current standards under the CAA are already “very stringent.” This violates the Clean Air Act, which provides that “emission standards shall be based...on internationally accepted standards, but not limited to, nor be less stringent than such standards, and with the standards sct forth in this section.”% As a consequence, the DENR has allowed emission standards to become obsolete compared to European Union (EU) and U.S. EPA standards, contrary to the requirement under the Clean Air Act that the standards must be based on internationally accepted standards, and must not be less stringent than the Clean Air Act standards. 40. As a further affront to the right to breathe clean air (Sec. 4 [a] RA 8749), this failure is set against the EMB processing applications for environmental compliance certificates of nearly three dozen new coal fired power plant projects. These new coal plant projects would emit, or lead to the formation, of pollutants that harm human health and the environment. Some of these pollutants would remain in the atmosphere for several weeks, such as ozone,37 or up to several centuries, such as carbon dioxide.38 Studies show that the effect of these air pollutants reach regional and global scales as long-lasting pollutants travel up to thousands of miles.”39 35 EMB's reply, Annex “J 36 Rep. Act No, 8749 (1999), sec. 19. 8” Hamrud, M. (1983). Residence time and spatial variability for gases in the atmosphere. Tellus B, 35(5), 295-303. 3° Archer, D., Eby, M., Brovkin, V., Ridgwell, A., Cao, L., Mikolajewicz, U,,.. & Tokos, K. (2009). Atmospheric lifetime of fossil fuel carbon dioxide. Annual Review of Earth and Planetary Sciences, 37, 117-134, 2° Frost, G. J., McKeen, S. A,, Trainer, M,, Ryerson, T. B, Neuman, J. A, Roberts, J. M,, .. & Parrish, D. D. (2006). Effects of changing power plant NOx emissions on ozone in the eastern United States: Proof of concept. Journal of Geophysical Research: Atmospheres, 111(D12). 3441. The comparisons above unmistakably show that in nearly every point, DENR emission standards have been less stringent than WHO, EU and US standards, contrary to DENR’s duty under the Clean Air Act to ensure that Philippine standards are at par with internationally accepted standards. I. The DENR unlawfully neglected its duty to designate attainment and non- attainment areas as mandated by Section 10 of the Clean Air Act and Rule VIIL, Section 1 of the Act’s Implementing Rules and Regulations. 42. The DENR, through the EMB, is mandated to delineate and designate attainment areas, where air quality complies with the National Ambient Air Quality Guideline Values: The Bureau shall delineate areas where the existing ambient air quality is at or below (that is, complies with) National Ambient Air Quality Guideline Values given in Part II, and shall designate such areas as “attainment areas.” Designation of attainment areas will be based on monitoring data collected using the reference methods in Part II and/or other relevant information, including meteorological data, and data covering existing nearby sources. The Department through the Bureau will designate attainment and non-attainment areas, and will review and revise these designations from time to time as relevant data become available.*° 43. The DENR is also required to designate non-attainment areas as follows: The Department shall designate areas where specific pollutants have already exceeded ambient standards as non-attainment areas. The Department shall prepare and implement a program that will prohibit new sources of 4° DAO 2000-81, Rule VIII, section 1. 3544. 46. ay. exceeded air pollutant without a corresponding reduction in existing resources.*! xx The DENR’s twin duties of delineating and designating attainment and non-attainment areas are acts specifically enjoined by law. They are “simple, definite dut(ies) arising under conditions admitted or proved to exist and imposed by law.”42 As this Court held in Concerned Residents of Manila Bay vs. MMDA, G.R. No. 17947-48 (18 December 2008) “the enforcement of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus.”43 Since the Clean Air Act took effect in 1999, until the present time, the DENR has failed to designate any attainment and non-attainment areas. The DENR’s failure to designate attainment and non- attainment areas requires urgent judicial attention because of the many new coal plant projects in the pipeline. It is imperative that the DENR determine whether or not the air quality in the proposed sites for these coal plant projects have exceeded ambient air quality guideline values before these coal plant projects are constructed. Section 10 of the Clean Air Act provides that the DENR “shall implement a program that will prohibit new sources of exceeded air pollutants without a corresponding reduction in existing sources.” The DENR should not be allowed to issue any ECCs or to authorize or approve the construction of any new coal plants unless and until it has designated the attainment and non-attainment areas mandated by the Clean Air Act. Lack of monitoring stations and equipment. The purpose of designating attainment and non-attainment areas is to identify areas where ambient standards on particulate matter, sulphur dioxide, nitrogen dioxide, lead, and other ‘1 Rep. Act No. 8749 (1999), sec. 10, *2 Lamb v. Phipps, 22 Phil. 456, 490 (1912). * GR, Nos. 171947-48, 18 December 2008. 3648. 49. 50. air pollutants have been exceeded. Designation of these areas should be based on “monitoring data collected using the reference methods in Part II and/or other relevant information, including meteorological data, and data covering existing nearby sources.”** Except for Davao City, the EMB does not have monitoring stations in areas hosting coal plant projects, and there are 34 more coal plant projects to be established in 14 locations also without monitoring stations. And even in areas that have air quality monitoring stations, the DENR’s equipment is incomplete. The DENR’s National Air Quality Status Report for 2012- 2013 shows that not all cities and municipalities hosting coal plants have ambient air quality monitoring stations.*5 Ambient air quality monitoring measures the concentration of pollutants in the air that people are exposed to in their communities. As Dr. Chernaik explains in his affidavit, ambient air monitoring is important “because there is robust evidence that breathing air quality with elevated concentrations of pollutants causes illnesses, including heart attacks, lung cancer, asthma attacks, respiratory illnesses and premature deaths.” As shown in their 2013 National Air Quality Status Report, the DENR has 17 monitoring systems for the criteria pollutants such as Particulate Matter 10 (PM10) and 2.5 (PM2.5), Sulfur Dioxide (S02), Nitrogen Dioxide (NO2), Photochemical Oxidants as Ozone (03), and Carbon Monoxide (CO). While the DENR has the equipment to monitor Particulate Matter 10 (PM10) and 2.5 (PM2.5), none of these equipment are located in municipalities hosting coal plants,*7 which are notorious emitters of PMio and PMo.s The only municipalities which host two coal plants that have monitoring stations are Naga City in Cebu and Davao City. Naga City’s monitoring station, however, only covers Total Suspended Particulates (TSP).** As Dr. Chernaik observed in his affidavit (Annex “G”), equipment that only monitors TSP is insufficient to determine whether air 44DAO 2000-81, Rule VIL, section 1. 45 See Annex “B”, 46 Annex “G", p. 3. 47 NAQSR 2012-2013, p. 26-27, Annex “B”, 81d 37quality in a municipality complies with air quality standards of the Clean Air Act: 51. Monitoring TSP, moreover, is insufficient to determine With respect to air quality, there are three size classes of particulate matter (which are subsets of one another): 1) TSP, which is the totality of alll particles in an air sample; 2) PMho, respirable particulate matter) which is all particles in an air sample with a diameter of less than 10 microns; and 3) PMa.s (very fine particulate matter), which is all particles in an air sample with a diameter of less than 2.5 microns. Firstly, from an environmental compliance standpoint, monitoring air quality for TSP only is insufficient to determine whether air quality complies with ambient air quality standards in the Philippine Clean Air Act, which includes separate standards for TSP (230 ng/m% on a daily basis, 90 ug/m? on an annual average basis) and PMio (150 ug/m3 on a daily basis, 60 g/m? on an annual average basis).*? whether the air is still safe for persons to breathe; additional monitoring for fine particles such as PM2.s should also be conducted: Secondly, from a public safety standpoint, monitoring air quality for TSP only is insufficient to determine whether air quality is healthy; additional monitoring for PMa.s is required (World Health Organization Guideline Values of 25 ug/m* on a daily basis and 10 ug/m? on an annual average basis) So, if municipalities are only monitoring levels of TSP in ambient air, then they will be unable to determine whether air quality in the municipality complies with ambient air quality standards and is safe for persons to breathe.50 4° Dr. Chernaik’s affidavit attached as Annex “G” at p. 17-18, 5° Idatp. 18. 3852. The coal plant project in Barangay Alas-asin, Mariveles, Bataan, for example, and the one in Barangay Lamao, Limay, Bataan are just 22 kilometers apart. Mariveles hosts other industries that are stationary sources of pollutants; Limay likewise hosts one coal plant project and other industries. The 600-MW coal plant in Mariveles will be expanded to 1200 MW, while three more coal plant projects for a total of 900 MW will be constructed in Limay. But the EMB has not determined whether these areas are attainment and non-attainment areas. Increment Consumption Rule. The National Air Quality Status Report for 2012-2013 also discloses that the DENR has only nine monitoring stations with complete equipment to monitor PM10, PM 2.5, SO2, NO2, carbon monoxide and ozone.°! As Dr. Chernaik points out, without such equipment “there is no means for determining whether air quality at a location contains unsafe levels of air pollution, adequately protects public health, and complies with ambient air quality standards.”52 Consequently, without such equipment, the DENR would not be able to determine whether proposed new or expanded coal-fired power plant projects comply with the increment consumption rule.% This rule provides that no new or modified source of pollution may be constructed if emissions from proposed source will exceed pollution standards provided below: No new source may be constructed or existing source modified if emissions from the proposed source or modification will, based on computer dispersion modeling, result in; Exceedance of the National Ambient Air Quality Guideline Values; or an increase in existing ambient air levels above the levels shown below PM-10, annual arithmetic mean 17 micrograms per cubic meter PM-10, 24-hr maximum 30 51 Supra note 9 at p. 26. 52 Annex “G" at p. 18. 53 DAO 2000-81, Rule X, Section 3. 39