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