[ G.R. No. 68474. February 11, 1986 ] 225 Phil. 266
EN BANC
[ G.R. No. 68474. February 11, 1986 ]
NUCLEAR FREE PHILIPPINE COALITION, ET AL., PETITIONERS, VS. NATIONAL POWER CORPORATION, ET AL., RESPONDENTS. [G.R. NO. 70632. FEBRUARY 11, 1986] LORENZO M. TAÑADA, ET AL., PETITIONERS, VS. PHILIPPINE ATOMIC ENERGY COMMISSION, ET AL., RESPONDENTS. R E S O L U T I O N
PLANA, J.:
I. In G.R. No. 70632, (1) petitioners question the competence of respondent PAEC Commissioners to pass judgment on the safety of the Philippine Nuclear Power Plant-1 (PNPP-1) in PAEC Licensing Proceedings No. 1-77 without however seeking their ouster from office, although “proven competence” is one of the qualifications prescribed by law for PAEC Commissioners. (2) Petitioners also assail the validity of the motion (application) filed by the National Power Corporation (NPC)/or the conversion of its construction permit into an operating license for PNPP-1 on the principal ground that it contained no information regarding the financial qualifications of NPC, its source of nuclear fuel, and insurance coverage for nuclear damage. (3) Petitioners finally charge respondent PAEC Commissioners with bias and prejudgment. 1. The first issue must be resolved against the petitioners. Where the validity of an appointment is not challenged in an appropriate proceeding, the question of competence is not within the field of judicial inquiry. If not considered a qualification the absence of which would vitiate the appointment, competence is a matter of judgment that is addressed solely to the appointing power. 2. As regards the legal sufficiency of the NPC motion for conversion, petitioners contend that the deficiencies they have indicated are jurisdictional infirmities which cannot be cured. The Court believes however that said deficiencies may be remedied and supplied in the course of the hearing before PAEC. For this purpose, respondent-applicant NPC may submit pertinent testimonies and documents when the PAEC hearing is re-opened, subject to controversion and counter-proof of herein petitioners. 3. There is merit in the charge of bias and prejudgment. The PAEC pamphlets — particularly Annexes “JJ”, “KK” and “LL” of the petition (G.R. 70632) — clearly indicate the prejudgment that PNPP-1 is safe. Exhibit “JJ” is an official PAEC 1985 pamphlet entitled “The Philippine Nuclear Power Plant-1.” It gives an overview specifically of PNPP-1, lauds the safety of nuclear power, and concludes with a statement of the benefits to be derived when the PNPP-1 starts operation.
“x x x When the PNPP-1 starts operating, it will generate a power of 620 megawatts enough to supply 15 percent of the electricity needs in Luzon. This is estimated to result in savings of US$160 million a year, representing the amount of oil displaced. “Aside from being a reliable source of electricity, nuclear power has an excellent safety record and has been found to result in lower occupational and public risks than fossil-fired (coal or oil) stations.” (p. 6, Emphasis supplied.)
The second pamphlet (Exh. “KK”) is entitled “NUCLEAR POWER - SAFE CLEAN ECONOMICAL AND AVAILABLE.” On the surface, it merely propagates the use of nuclear power in general. But its numerous specific references to the PNPP-1 “which will be operational in 1985” and its advantages give credence to the charge that Exhibit “KK” was in reality designed to project PNPP-1 as safe, among others. When Exhibit “KK” was published, PNPP-1 was the only nuclear plant under construction in the Philippines. It is the Philippine nuclear plant specifically mentioned therein that was to be operational in 1985. Therefore, when the pamphlet states that nuclear power is working now in other countries and “it should work for us too” because it is “safe” and “economical”, it is logical to conclude that the reference is to no other than the nuclear power to be generated at the PNPP-1. Also worth quoting is the following passage in Exhibit “KK” which sweepingly vouchsafes all nuclear power plants, including the PNPP-1:
“No member of the public has ever been injured during the last 25 years that commercial nuclear reactors have been generating electricity. As is to be expected in any complex system as nuclear power plants, there have been failure of equipment and human errors. However in every instance, the safety equipment designed into the nuclear reactor self terminated the accident without injury to the operators or the public. The Three Mile Island Incident, serious as it was, did not result in the loss of life nor did it result in the exposure of anyone beyond permissible limits. “The designers of nuclear plants assume failure to occur, and provide multiple safeguards protection against every conceivable malfunction.” (p. 7, Emphasis supplied.)
The third pamphlet (Exh. “LL”) is entitled NUCLEAR POWER PLANT and ENVIRONMENTAL SAFETY. Speaking specifically of the PNPP-1, it categorically states that the Bataan nuclear plant will not adversely affect the public or the flora or fauna in the area. One of the stated reasons in support of the conclusion is ?
“And environmentally, a nuclear power plant emits only insignificant amount of radioactivity to the environment. It does not cause chemical pollution of air or water, it does not emit sulfur dioxide or nitrogen oxides like plants fired by fossil fuels such us coal and oil. Besides, even coal fired plants may emit radioactive particles of uranium and thorium because these may be found naturally associated with coal deposits. “Comparatively therefore, a nuclear power plant is the cleanest and the safest, environmently no other technology in modern times has been developed with so dominant concern for public safety as nuclear power.” (p. 8)
Respondent PAEC Commissioners cannot escape responsibility for these official pamphlets. Exhibit “JJ” was published in 1985, when respondent Commissioners had already been appointed to their present positions. Exhibits “KK” and “LL” were issued earlier, but the majority of respondent Commissioners even then were already occupying positions of responsibility in the PAEC. Commissioner Manuel Eugenio was Acting Chief of the PAEC Department on Nuclear Technology and Engineering from June, 1980 to July, 1984, Commissioner Quirino Navarro was PAEC Chief Science Research Specialist from May, 1980 to September, 1984; and Commissioner Alejandro Ver Albano was PAEC Deputy Commissioner from March, 1980 to September, 1984. Additionally, the stubborn fact remains unrebutted that Exhibits “JJ”, “KK” and “LL” continued to be distributed by PAEC as late as March, 1985. In other words their official distribution continued after the filing of NPC’s motion for conversion on June 27, 1984 and even after PAEC had issued its order dated February 26, 1985 formally admitting the said motion for conversion. At any rate, even if it be assumed that there are some doubts regarding the conclusion that there has been a prejudgment of the safety of PNPP-1, the doubts should be resolved in favor of a course of action that will assure an unquestionably objective inquiry, considering the circumstances thereof and the number of people vitally interested therein. Having thus prejudged the safety of the PNPP-1, respondent PAEC Commissioners would be acting with grave abuse of discretion amounting to lack of jurisdiction were they to sit in judgment upon the safety of the plant, absent the requisite objectivity that must characterize such an important inquiry. The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from further acting in PAEC Licensing Proceedings No. 1-77. II. In G.R. No. 68474, acting on the motion filed therein dated June 8, 1985 to order PAEC to reconsider its orders of May 31 and June 5, 1985, the urgent motion for mandatory injunction and/or restraining order dated August 3, 1985, the second urgent motion for mandatory injunction dated August 12, 1985, and the various pleadings and other documents submitted by the parties relative thereto, and considering the paramount need of a reasonable assurance that the operation of PNPP-1 will not pose an undue risk to the health and safety of the people, which dictates that the conduct of the inquiry into the safety aspects of PNPP-1 be characterized by sufficient latitude, the better to achieve the end in view, unfettered by technical rules of evidence (Republic Act 5207, section 34), and in keeping with the requirements of due process in administrative proceedings, the Court Resolved to ORDER respondent PAEC (once reconstituted) to re-open the hearing on PNPP-1 so as to give petitioners sufficient time to complete their cross-examination of the expert witnesses on quality assurance, to cross-examine the witnesses that petitioners have failed to cross-examine on and after August 9, 1985, and to complete the presentation of their evidence, for which purpose, respondent PAEC shall issue the necessary subpoena and subpoena duces tecum to compel the attendance of relevant witnesses and/or the production of relevant documents. For the said purposes, the PAEC may prescribe a time schedule which shall reasonably assure the parties sufficient latitude to adequately present their case consistently with the requirements of dispatch. It is understood that the PAEC may give NPC the opportunity to correct or supply deficiencies in its application or evidence in support thereof. Teehankee, Concepcion, Jr., Melencio-Herrera, De la Fuente, and Cuevas, JJ., concur. Abad Santos, J., filed a separate concurring opinion. Aquino, C.J., and Patajo, J., dissents. Gutierrez, Jr., separate concurring and dissenting opinion. Escolin and Alampay, JJ., took no part.