Mac Duguiang Jr.

Gerochi vs. Department of Energy

G.R. No. 159796 | July 17, 2007
J. Nchura

TOPIC: Inherent Powers of the State

SUMMARY:
The Congress enacted RA 9136 or the Electric Power Industry Act of 2001 which provides for the
imposition of a “Universal Charge” to all electricity end users as payment for government debts,
missionary electrification, equalization of taxes, and royalties. The universal charge shall be collected
by the Energy Regulatory Commission on a monthly basis from all end users and will then be
managed by the PSALM Corp. through the creation of a special trust fund. Herein Petitioners assail
the validity of Section 34 of the EPIRA Law for being an undue delegation of the power of taxation.

The Court ruled that universal charge as provided for in Section 34 is not a tax but an exaction of the
regulatory power of the state, in the exercise of its police power. The universal charge cannot be
considered as tax because it is not for generation of revenue, but for regulation to ensure the viability
of the country's electric power industry.

Moreover, the amount collected is not made certain by the ERC, but by the legislative parameters
provided for in the law itself. It therefore cannot be understood as a rule solely coming from the ERC.
The ERC in this case is only a specialized administrative agency which is tasked of executing a
subordinate legislation issued by Congress; which before execution must pass both the completeness
test and the sufficiency of standard test. The court in appreciating Section 34 of RA 9136 in its entirety
finds the said law and the assailed portions free from any constitutional defect and thus deemed
complete and sufficient in form.

DOCTRINE:
The distinction between police power and power of taxation rests in the purpose for which the charge
is made. If generation of revenue is the primary purpose and regulation is merely incidental, the
imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised
does not make the imposition a tax.

FACTS:

 In 2001, Congress enacted RA 9136 or the "Electric Power Industry Reform Act of 2001”
o Section 34 thereof provides for the imposition of a “Universal Charge” to all electricity
end users after a period of 1 year after the effectively of the EPIRA Law.
o The universal charge to be collected would serve as payment for government debts,
missionary electrification, equalization of taxes, and royalties applied to renewable
energy and imported energy, environmental charge and for a charge to account for all
forms of cross subsidies for a period not exceeding 3 years.
o The universal charge shall be collected by the ERC on a monthly basis from all end users
and will then be managed by the PSALM Corp. through the creation of a special trust
fund.
Mac Duguiang Jr.

 On April 5, 2002, respondent National Power Corporation-Strategic Power Utilities Group (NPC-
SPUG) filed with respondent Energy Regulatory Commission (ERC) a petition for the availment
from the Universal Charge of its share
 On April 2, 2003, ERC rendered a decision authorizing the NPC to draw up to ₱70,000,000.00
from PSALM for its 2003 Watershed Rehabilitation Budget subject to the availability of funds for
the Environmental Fund component of the Universal Charge

 On the basis of the said ERC decision, Respondent Panay Electric Company, Inc. (PECO) charged
Petitioner Gerochi and all other end-users with the Universal Charge as reflected in their
respective electric bills

 Thus, Petitioner filed an original action before the SC praying that Section 34 of RA 9136 be
declared unconstitutional, arguing that:
o The Universal Charge of the said law is a tax which is to be collected from all electric
end-users and self-generating entities.
o The assailed provision clearly provides that the Universal Charge is to be determined,
fixed and approved by the ERC
o The power to tax is strictly a legislative function and as such, the delegation of said
power to any executive or administrative agency like the ERC is unconstitutional

 On the other hand, Respondent PSALM contended that:

o unlike a tax which is imposed to provide income for public purposes, the assailed
Universal Charge is levied for a specific regulatory purpose, which is to ensure the
viability of the country's electric power industry.
o Thus, it is exacted by the State in the exercise of its inherent police power,
o Thus, there is no undue delegation of legislative power to the ERC since the latter
merely exercises a limited authority or discretion as to the execution and
implementation of the provisions of the EPIRA.
 Respondents DOE, ERC, and NPC shared the same view that:
o the Universal Charge is not a tax
 the said Universal Charge does not possess the essential characteristics of a tax,
that its imposition would redound to the benefit of the electric power industry
and not to the public, and that its rate is uniformly levied on electricity end-
users, unlike a tax which is imposed based on the individual taxpayer's ability to
pay.
o Moreover, respondents deny that there is undue delegation of legislative power to the
ERC since the EPIRA sets forth sufficient determinable standards which would guide the
ERC in the exercise of the powers granted to it.

ISSUE:

W/N the Universal Charge imposed under Sec. 34 of the EPIRA is a tax --- NO, it is not a tax

Discussion on taxation vs. police power

Mac Duguiang Jr.

 To address the issue, the Court distinguished the State’s power of taxation from the police
power
o The power to tax is an incident of sovereignty which emanates from necessity; without
taxes, government cannot fulfill its mandate of promoting the general welfare and well-
being of the people.
o On the other hand, police power is the power of the state to promote public welfare by
restraining and regulating the use of liberty and property which finds its justification in
the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme
law)
 police power grants a wide panoply of instruments through which the State, as
parens patriae, gives effect to a host of its regulatory powers
 The conservative and pivotal distinction between these two powers rests in the purpose for
which the charge is made.
o If generation of revenue is the primary purpose and regulation is merely incidental,
the imposition is a tax;
o but if regulation is the primary purpose, the fact that revenue is incidentally raised
does not make the imposition a tax

Application

 In this case, in Sec. 34 of the EPIRA, it is the State's police power, particularly its regulatory
dimension, which is invoked
 This is deduced from Sec. 2 which enumerates the purposes for which the Universal Charge is
imposed and which can be amply discerned as regulatory in character, to wit:

SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State:

(a) To ensure and accelerate the total electrification of the country;
(b) To ensure the quality, reliability, security and affordability of the supply of
electric power;
(c) To ensure transparent and reasonable prices of electricity in a regime of free
and fair competition and full public accountability to achieve greater operational
and economic efficiency and enhance the competitiveness of Philippine products
in the global market;
(d) To enhance the inflow of private capital and broaden the ownership base of
the power generation, transmission and distribution sectors;
(e) To ensure fair and non-discriminatory treatment of public and private sector
entities in the process of restructuring the electric power industry;
(f) To protect the public interest as it is affected by the rates and services of
electric utilities and other providers of electric power;
(g) To assure socially and environmentally compatible energy sources and
infrastructure;
(h) To promote the utilization of indigenous and new and renewable energy
resources in power generation in order to reduce dependence on imported
energy;
Mac Duguiang Jr.

(i) To provide for an orderly and transparent privatization of the assets and
liabilities of the National Power Corporation (NPC);
(j) To establish a strong and purely independent regulatory body and system to
ensure consumer protection and enhance the competitive operation of the
electricity market; and
(k) To encourage the efficient use of energy and other modalities of demand side
management.

 From the enumerated purposes, it can be gleaned that the assailed Universal Charge is not a tax,
but an exaction in the exercise of the State's police power.
o The law aims to promote public welfare by ensuring the viability of the country's electric
power industry.

Taxing power may also be used as an implement of police power

 In the cases of Valmonte v. Energy Regulatory Board, et al. and Gaston v. Republic Planters Bank,
the Court held that special funds, the Oil Price Stabilization Fund (OPSF) and the Sugar
Stabilization Fund (SSF), were exactions made in the exercise of the police power
 Such is similar in this case with the Special Trust Fund (STF) under Sec. 34
o This trust fund is an exercise of power and responsibility of the government to secure
the physical and economic survival and well-being of the community; thru viability of
the country's electric power industry.
o This feature of the Universal Charge further boosts the position that the same is an
exaction imposed primarily in pursuit of the State's police objectives.

W/N there is undue delegation of legislative power to tax on the part of the ERC

Discussion of power of subordinate legislation

 A logical corollary to the doctrine of separation of powers is the principle of non-delegation of

powers, as expressed in the Latin maxim potestas delegata non delegari potest (what has been
delegated cannot be delegated).
o But in the face of the increasing complexity of modern life, delegation of legislative
power to various specialized administrative agencies is allowed as an exception to this
principle
o Hence, the administrative bodies - the principal agencies tasked to execute laws in their
specialized fields – are delegated the authority to promulgate rules and regulations to
implement a given statute and effectuate its policies.

 The test for the valid exercise of the power of subordinate legislation is the completeness test
and the sufficient standard test
Mac Duguiang Jr.

o Under completeness test, the law must be complete in all its terms and conditions when
it leaves the legislature such that when it reaches the delegate, the only thing he will
have to do is to enforce it.
o Under sufficient standard test, there should be adequate guidelines or limitations in the
law to determine the boundaries of the delegate's authority and prevent the delegation
from running riot.

Application

 In this case, the Court found that the EPIRA, read and appreciated in its entirety, in relation to
Sec. 34 thereof, is complete in all its essential terms and conditions, and that it contains
sufficient standards.

 As to the completeness test, the amount to be paid is made certain by the parameters in the law
o Sec. 43 provides that:
 “Within six (6) months from the effectivity of this Act, promulgate and enforce,
in accordance with law, a National Grid Code and a Distribution Code which
shall include”
 “Financial capability standards for the generating companies, the TRANSCO,
distribution utilities and suppliers: Provided, That in the formulation of the
financial capability standards, the nature and function of the entity shall be
considered: Provided, further, That such standards are set to ensure that the
electric power industry participants meet the minimum financial standards to
protect the public interest. Determine, fix, and approve, after due notice and
public hearings the universal charge, to be imposed on all electricity end-users
pursuant to Section 34 hereof”
o Sec. 51 provides that:
 “The PSALM Corp. shall, in the performance of its functions and for the
attainment of its objective, have the following powers:”
 “(d) To calculate the amount of the stranded debts and stranded contract costs
of NPC which shall form the basis for ERC in the determination of the universal
charge;”
o Thus, the law is complete and passes the first test for valid delegation of legislative
power

 As to the sufficient standard test, provisions of the EPIRA such as, among others, "to ensure the
total electrification of the country and the quality, reliability, security and affordability of the
supply of electric power"and "watershed rehabilitation and management" meet the
requirements for valid delegation
o These are sufficient standards as they provide the limitations on the ERC’s power to
formulate the IRR

 Thus, there is no undue delegation of legislative power to the ERC.

Mac Duguiang Jr.

RULING: WHEREFORE, the instant case is hereby DISMISSED for lack of merit.

SO ORDERED.