EN BANC
G.R. No. 201852, April 05, 2016
ROBERTO G. ROSALES, NICANOR M. BRIONES, PONCIANO D. PAYUYO, JOSE R. PING-AY, ISIDRO Q. LICO, AND JOSE TAN RAMIREZ, IN THEIR CAPACITY AS MEMBERS OF THE BOARD OF DIRECTORS OF NATIONAL ALLIANCE FOR CONSUMER EMPOWERMENT OF ELECTRIC COOPERATIVES AND ON BEHALF OF THE NINE MILLION (9,000,000) MEMBER CONSUMERS OF NEA-ELECTRIC COOPERATIVES NATIONWIDE WHO HAVE CONTRIBUTED THE MEMBERS' CONTRIBUTIONS FOR CAPITAL EXPENDITURES (MCC) OR REINVESTMENT FUND FOR SUSTAINABLE CAPITAL EXPENDITURES (RFSC), Petitioners, v. ENERGY REGULATORY COMMISSION (ERC), ASELCO, AKELCO, ALECO, ANTECO, AURELCO, BATELEC I, BATELEC II, BENECO, BILECO, BOHECO I, BOHECO II, FIBECO, BUSECO, CAGELCO I, CAGELCO II, CASURECO I, CASURECO II, CASURECO III, CASURECO IV, CAMELCO, CAPELCO, CEBECO I, CEBECO II, CEBECO III, CENECO, CENPELCO, DORECO, DASURECO, ESAMELCO, FLECO, GUIMELCO, IFELCO, INEC, ISECO, ILECO I, ILECO II, ILECO III, ISELCO I, KAELCO, LUELCO, SORECO I, LANECO, LEYECO I/DORELCO, LEYECO II, LEYECO III, LEYECO IV, LEYECO V, PENELCO, MOELCO I, MOELCO II, MORESCO I, MORESCO II, MOPRECO, NORECO I, NORSAMELCO, NEECO I, NEECO II - Area I, NEECO II - Area II, PELCO I, PELCO II, CANORECO, PRESCO, QUEZELCO I, QUEZELCO II, SAMELCO I, SAMELCO II, SIARELCO, SOCOTECO I, SOCOTECO II, SOLECO, SUKELCO, SURNECO, SURSECO I, SURSECO II, TARELCO I, TARELCO II, VRESCO, ZAMECO I, ZAMECO II, ZAMCELCO, ZANECO, ZAMSURECO I, ZAMSURECO II, BATANELCO, LUBELCO, OMECO, ORMECO, MARELCO, TIELCO, ROMELCO, BISELCO, FICELCO, MACELCO, TISELCO, BANELCO, PROSIELCO, CELCO, COTELCO, TAWELCO, SIASELCO, SULECO, BASELCO, CASELCO, LASURECO, MAGELCO, DIELCO, and COTELCO-PALMA, Respondents.
D E C I S I O N
PERALTA, J.:
This petition for certiorari under Rule 65 of the Rules of Court (Rules) seeks to declare the illegality and unconstitutionality of the Members' Contribution for Capital Expenditures (MCC), later renamed as Reinvestment Fund for Sustainable Capital Expenditures (RFSC), which is being imposed by on-grid Electric Cooperatives (ECs), pursuant to the following Rules and Resolution of the Energy Regulatory Commission (ERC):
1. Rules for Setting the Electric Cooperatives' Wheeling Rates (RSEC-WR), which was adopted in Resolution No. 20, Series of 2009, issued on September 23, 2009;1 and
2. Resolution No. 14, Series of 2011, issued on July 6, 2011.2
ARTICLE 5
MEMBERS' CONTRIBUTION FOR CAPITAL EXPENDITURES
5.1 Function of Members' Contribution for Capital Expenditures
The Members' Contribution for Capital Expenditures is envisioned to fund the amortization or debt service of its indebtedness associated with the expansion, rehabilitation or upgrading of the existing electric power system of the ECs in accordance with their ERC-approved Capital Expenditure Plan.
5.2 Utilization of Members' Contribution for Capital Expenditures
The utilization of the Member's Contribution fund shall be subject to the following conditions:
chanRoblesvirtualLawlibrarya. It shall be used solely for capital expenditure or any other projects approved by the Commission and not for any other purpose, even on a temporary basis;In the case of ECs registered under the CDA, the said member-contribution shall be converted into member's share capital.
b. The amounts collected for Members' Contribution fund shall be recognized as contribution from member- consumers;
c. The amounts collected for Members' Contribution, including interest income, shall be placed in a separate account; and
d. If the member-consumer terminates its contract with the EC, the said contribution shall not be withdrawn, instead the same shall be treated as Contribution in Aid of Construction (CIAC).
5.3 Members' Contribution for Capital Expenditure Rate Cap Per Group
The EC's current tariff includes a reinvestment fund provision calculated at five percent (5%) of its unbundled retail rate (inclusive of generation, transmission, and distribution charges) as part of its Rate
Unbundling Decision. This translates to an average of 22% of the 98 ECs' distribution charges (inclusive of distribution, supply and metering charges). The Members' Contribution for Capital Expenditure Rate Cap was determined by applying the 22% to the respective group's 2008 median operating costs per kWh which was the basis for the ECs' operating revenue requirements.
The result of the afore-mentioned calculation is presented in Table 7 hereunder:
TABLE 7. Members' Contribution for Capital Expenditure Rate Cap per Group
GROUP3 2008 level (median) Members' contribution for CAPEX @ 22% A 2.420000 0.5324 B 1.820000 0.4004 C 1.680000 0.3696 D 1.140000 0.2508 E 1.320000 0.2904 F 0.990000 0.2178 G 0.690000 0.1518
5.4 Additional Members' Contribution for Capital Expenditure
The actual capital expenditure may vary among ECs. In the event that the members' contribution for capital expenditures rate caps herein authorized are insufficient for its purpose, the EC may collect such additional Members' Contribution for Capital Expenditures by securing the consent of its member-consumers for such collection through existing legal procedures, provided the expenditure was approved by the Commission as part of such EC's Capital Expenditure Plan. Provided further that the additional member contribution is obtained prior to the incurrence of the indebtedness^] provided finally that the collection of said additional contribution shall be subject to the principles of fairness and equity, in accordance with the objective of the EPIRA for the elimination of cross-subsidy.
Collections made pursuant to this (sic) provisions may be subject to the audit of the Commission at its discretion.4
NOW, THEREFORE, be it RESOLVED, as the ERC hereby RESOLVES to AMEND the nomenclature of "Members' Contribution for Capital Expenditures (MCC)" and the "MCC-Real Property Tax (RPT)" to "Reinvestment Fund for Sustainable Capital Expenditures (RFSC)" and "Provision for RPT", respectively, but the nature and purpose of the same remain, to wit:
The MCC is envisioned to fund the amortization or debt service of the ECs' indebtedness associated with the expansion, rehabilitation or upgrading of their existing electric power system in accordance with their ERC-approved CAPEX Plan. The utilization of the MCC fund shall be subject to the following conditions:1. It shall be used solely for CAPEX or any other projects approved by the ERC and not for any other purpose, even on a temporary basis;
2. The amounts collected for MCC fund shall be recognized as contribution from member-consumers;
3. The amounts collected for MCC, including interest income, shall be put in a separate account; and
4. If the member-consumer terminates his contract with the EC, the said contribution shall not be withdrawn instead the same shall be treated as CIAC.
In the case of ECs registered under the CDA, the said member-contribution shall be converted into member's share capital.
In the event that the MCC rate caps are insufficient for its purpose, the EC may collect such additional MCC by securing the consent of its member-consumers for such collection through existing legal procedures; Provided that, the expenditure was approved by the ERC as part of the EC's CAPEX Plan; Provided further that, the additional MCC is obtained prior to the incurrence of the indebtedness; Provided finally that, the collection of said additional MCC shall be subject to the principles of fairness and equity in accordance with the objective of the EPIRA for the elimination of cross-subsidy.5ChanRoblesVirtualawlibrary
(A)
THE IMPOSITION OF MCC OR RFSC BY THE ENERGY REGULATORY COMMISSION AS A FORM OF INVESTMENT SOLICITATION TO FUND THE EXPANSION AND OTHER CAPITAL [EXPENDITURES] OF ELECTRIC COOPERATIVES IS HIGHLY IRREGULAR[J OPPRESSIVE[,] AND UNCONSTITUTIONAL AS IT DIRECTLY VIOLATES THE DUE PROCESS AND EQUAL PROTECTION CLAUSES ON PROPERTY UNDER SECTION 1 ARTICLE III OF THE 1987 CONSTITUTION.(B)
THE MANDATORY COLLECTION OF THE MCC OR RFSC BY THE ELECTRIC COOPERATIVES FROM ITS MEMBER-CONSUMERS WITHOUT THE PROPER EXPLICIT ACCOUNTING ENTRIES AND ACKNOWLEDGMENT OF BEING A PATRONAGE CAPITAL AND WITHOUT THE BENEFIT OF A FAIR RETURN OF THEIR INVESTMENTS OR PATRONAGE CAPITAL INPUT OR CONTRIBUTIONS IS TANTAMOUNT TO TAKING A PROPERTY WITHOUT JUST COMPENSATION AND IS VIOLATIVE OF THE PROVISION OF SECTION 9, ARTICLE III OF THE 1987 CONSTITUTION.(C)
THE RULING OF ERG ALLOWING THE MANDATORY COLLECTION OF MCC OR RFSC BY THE ELECTRIC [COOPERATIVES] [ECs] IS UNDOUBTEDLY UNCONSTITUTIONAL AS IT DIRECTLY VIOLATES SECTION 10, ARTICLE II AND SECTION 1 & 15, ARTICLE XII OF THE 1987 CONSTITUTION.(D)
THE UNJUST COLLECTION OF. THE MCC OR RFSC BY THE ELECTRIC COOPERATIVES AS AUTHORIZED AND RULED BY ERC IS CONTRARY TO LAW AS NOWHERE IN THE PROVISIONS OF P.D. 269 DOES IT SAY THAT MEMBERS ON A VOLUNTARY AND COOPERATIVE MANNER WILL PROVIDE CAPITAL TO FUND THE CAPITAL EXPENDITURES BY THE COOPERATIVES. IT LIKEWISE VIOLATES SECTION 37 OF P.D. 269.6
It is a general rule that every action must be prosecuted or defended in the name of the real party-in-interest, who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.
Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest." "To qualify a person to be a real party-in-interest in whose name an action must be prosecuted, he must appear to be the present real owner of the right sought to be enforced."
"Legal standing" or locus standi calls for more than just a generalized grievance. The concept has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adversencss which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.
A party challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." It must shown that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.14
SECTION 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
x x x
A respondent is said to be exercising judicial function where he has the power to determine what the law is and what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties.
Quasi-judicial function, on the other hand, is "a term which applies to the actions, discretion, etc., of public administrative officers or bodies ... required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature."
Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that gives rise to some specific rights of persons or property under which adverse claims to such rights are made, and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to determine the law and adjudicate the respective rights of the contending parties.15
SEC. 43. Functions of the ERC. - The ERC shall xxx be responsible for the following key functions in the restructured industry:
x x x x
f. In the public interest, establish and enforce a methodology for setting transmission and distribution wheeling rates and retail rates for the captive market of a distribution utility, taking into account all relevant considerations, including the efficiency or inefficiency of the regulated entities. The rates must be such as to allow the recovery of just and reasonable costs and a reasonable return on rate base (RORB) to enable the entity to operate viably. The ERC may adopt alternative forms of internationally-accepted rate-setting methodology as it may deem appropriate. The rate-setting methodology so adopted and applied must ensure a reasonable price of electricity. The rates prescribed shall be non-discriminatory. To achieve this objective and to ensure the complete removal of cross subsidies, the cap on the recoverable rate of system losses prescribed in Section 10 of Republic Act No. 7832, is hereby amended and shall be replaced by caps which shall be determined by the ERC" based on load density, sales mix, cost of service, delivery voltage and other technical considerations it may promulgate. The ERC shall determine such form of rate-setting methodology, which shall promote efficiency. In case the rate setting methodology used is RORB, it shall be subject to the following guidelines:(i) For purposes of determining the rate base, the TRANSCO or any distribution utility may be allowed to revalue its eligible assets not more than once every three (3) years by an independent appraisal company: Provided, however, That ERC may give an exemption in case of unusual devaluation: Provided, further, That the ERC shall exert efforts to minimize price shocks in order to protect the consumers;
(ii) Interest expenses are not allowable deductions from permissible return on rate base;
(iii) In determining eligible cost of services that will be passed on to the end-users, the ERC shall establish minimum efficiency performance standards for the TRANSCO and distribution utilities including systems losses, interruption frequency rates, and collection efficiency;
(iv.) Further, in determining rate base, the TRANSCO or any distribution utility shall not be allowed to include management inefficiencies like cost of project delays not excused by force majeure, penalties and related interest during construction applicable to these unexcused delays; and
(v.) Any significant operating costs or project investments of the TRANSCO and distribution utilities which shall become part of the rate base shall be subject to verification by the ERC to ensure that the contracting and procurement of the equipment, assets and services have been subjected to transparent and accepted industry procurement and purchasing practices to protect the public interest. (Emphasis supplied)17
xxx The petitioners appear to have forgotten that the Supreme Court is a court of last resort, not a court of first instance. The hierarchy of courts should serve as a general determinant of the appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does not give the petitioners the unrestricted freedom of choice of forum. By directly filing Rule 65 petitions before us, the petitioners have unduly taxed the Court's time and attention which are better devoted to matters within our exclusive jurisdiction. Worse, the petitioners only contributed to the overcrowding of the Court's docket. We also wish to emphasize that the trial court is better equipped to resolve cases of this nature since this Court is not a trier of facts and does not normally undertake an examination of the contending parties' evidence.19
SEC. 43. Functions of the ERC. - The ERC shall xxx be responsible for the following key functions in the restructured industry:x x x x
u. The ERC shall have the original and exclusive jurisdiction over all cases contesting rates, fees, fines and penalties imposed by the ERC in the exercise of the abovementioned powers, functions and responsibilities and over all cases involving disputes between and among participants or players in the energy sector. (Emphasis supplied)23
The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. The doctrine entails lesser expenses and provides for the speedier resolution of controversies. Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal of the action.
The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (4) where the amount involved is relatively so small as to make the rule impractical and oppressive; (5) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (6) where judicial intervention is urgent; (7) where the application of the doctrine may cause great and irreparable damage; (8) where the controverted acts violate due process; (9) where the issue of non-exhaustion of administrative remedies had been rendered moot; (10) where there is no other plain, speedy and adequate remedy; (11) where strong public interest is involved; and (12) in quo warranto proceedings.25ChanRoblesVirtualawlibrary
WHEREAS, the current rates of ECs are no longer responsive since the costs of providing electric service to the consumers increased significantly from the time their rates were determined by the Commission based on 2000 test year;
WHEREAS, the ECs are cognizant of the inherent regulatory lag in the current cash flow rate-setting methodology adopted through a quasi-judicial process which is further exacerbated by the fact that if all the one hundred twenty (120) ECs file their respective rate applications with each application to the resolved in one (1) month, it will take the Commission one hundred twenty (120) months or ten (10) years, to resolved all the applications;
WHEREAS, the Commission has conducted studies to establish a new rate-setting methodology for ECs that will address their present problems and resolve the regulatory lag in the resolution of rate applications, particularly, the "Benchmarking Methodology";
WHEREAS, the results of said "Benchmarking Methodology" studies were subjected to several expository and public consultations which were held on various dates and venues. The ECs attended and actively participated in the said expository and public consultations and submitted data to the Commission reflecting their respective costs of service as part of the "Benchmarking Methodology studies;
WHEREAS, the rates as determined in the said "Benchmarking Methodology" encourage the ECs to be financially self-sufficient, efficient and member-customer responsive;
WHEREAS, on May 3 and 4, 2007, the Commission conducted a series of expository hearings for all ECs in Luzon, Visayas and Mindanao on the proposed "Benchmarking Methodology" for ECs;
WHEREAS, on May 17, 2007, the Commission conducted a public consultation on the "Classification of ECs for Regulatory Purposes and the Proposed Efficiency Benchmarking Methodology";
WHEREAS, on various dates, the Commission conducted a series of Expository Public Consultations for all ECs in Luzon, Visayas and Mindanao on the classification of on-grid ECs and the determination of the functionalized benchmark Operation and Maintenance (O&M) rate, Capital Expenditure (CAPEX) rate, proposed customer segmentation, proposed benchmark rate design, new lifeline charges, performance indices, transition period and rate comparison;
WHEREAS, after considering all the comments and manifestations during the various public consultations, the Commission developed a new methodology for setting the ECs' wheeling rates embodied in a document denominated as "Rules for Setting the Electric Cooperatives' Wheeling Rates" (RSEC-WR);
WHEREAS, on April 4, 2009, the General Managers of all the on-grid Electric Cooperatives (ECs) in the Philippines adopted Resolution No. I, Series of 2009, entitled "A Resolution Imploring Upon the Energy Regulatory Commission to Implement a New Rate-Setting Methodology for Setting the Electric Cooperatives' Wheeling Rates (RSEC-WR)";
WHEREAS, on April 21, 2009, the Commission issued a Notice of Proposed Rule-Making (Notice), wherein it treated the Resolution adopted by the General Managers of all the on-grid ECs as a petition to initiate rule-making by the ECs that are signatories thereto, docketed as ERC Case No. 2009-007 RM, entitled "In the Matter of the Petition by the On-Grid Electric Cooperatives for the Adoption of the Rules for Setting the Electric Coopratives' Wheeling Rates". The Draft RSEC-WR adopted the Rule-Making proceedings under Rule 21 of the Commission's Rules of Practice and Procedure. All interested parties were directed to submit their respective comments on the Draft RSEC-WR until May 15, 2009 and said petition was set for public hearings on various dates and venues;
WHEREAS, on various dates, several ECs and interested parties submitted their respective comments on the Draft RSEC-WR;
WHEREAS, from May 17 to July 20, 2009, the Commission conducted public hearings on the instant petition at the respective localities of the ninety-six (96) on-grid ECs;
WHEREAS, on August 19, 2009, the Commission posted at its website and published in newspapers of general circulation in the Philippines the revised Draft RSEC-WR for solicitation of comments from interested parties;
WHEREAS, on various dates, several ECs and interested parties submitted their respective comments on the revised Draft RSEC-WR;
WHEREAS, in accordance with the aforesaid mandate and after a careful consideration of the various views and comments submitted by the interested parties, the Commission adopts and promulgates the RSEC-WR[.]27
The term "grave abuse of discretion" has a specific meaning. An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be so patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility." Furthermore, the use of a petition for certiorari is restricted only to "truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void.
x x x30
1. Develop a tariff setting methodology that would be more responsive to the needs of the ECs given the objectives of the EP1RA;
2. Encourage reforms in the structure and operations of the ECs for greater efficiency and lower costs;
3. Introduce incentives in the framework that will allow efficiency gains to be shared between the EC and the end-users; and
4. Develop a regulatory framework that will ease regulatory burden and cut down regulatory lag for implementation.32
x x x x
(g) To construct, purchase, lease as lessee, or otherwise acquire, and to equip, maintain, and operate, and to sell, assign, convey, lease as lessor, mortgage, pledge, or otherwise dispose of or encumber, electric transmission and distribution lines or systems, electric generating plants, lands, buildings, structures, dams, plants, and equipment, and any other real or personal property, tangible or intangible, which shall be deemed necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized;
(h) To purchase, lease as lessee, or otherwise acquire, and to use, and exercise and to sell, assign, convey, mortgage, pledge or otherwise dispose of or encumber franchises, rights, privileges, licenses and easements;
x x x x
(j) To construct, acquire, own, operate and maintain electric subtransmission and distribution lines along, upon, under and across publicly owned lands and public thoroughfares, including, without limitation, all roads, highways, streets, alleys, bridges and causeways. In the event of the need of such lands and thoroughfares for the primary purpose of the government, the electric cooperative shall be properly compensated;
(j-1) To construct, acquire, own, operate and maintain generating facilities within its franchise area, x x x
x x x x
(p) To do and perform any other acts and things, and to have and exercise any other powers which may be necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized.42
SEC. 35. Non-profit, Non-discriminatory, Area Coverage Operation and Service. - A cooperative shall be operated on a non-profit basis for the mutual benefit of its members and patrons; shall, as to rates and services make or grant no unreasonable preference or advantage to any member or patron nor subject any member or patron to any unreasonable prejudice or disadvantage; shall not establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service; shall not give, pay or receive any rebate or bonus, directly or indirectly, or mislead its members in any manner as to rates charged for its services; and shall furnish service on an area coverage basis; Provided, That for any extension of service which if treated on the basis of standard terms and conditions is so costly as to jeopardize the financial feasibility of the cooperative's entire operation, the cooperative may require such contribution in aid of construction, such facilities extension deposit, such guarantee of minimum usage for a minimum term or such other reasonable commitment on the part of the person to be served as may be necessary and appropriate to remove such jeopardy, but no difference in standard rates for use of service shall be imposed for such purpose.
x x x43 (Emphasis supplied)
Endnotes:
1 Entitled "A Resolution Adopting the Rules for Setting the Electric Cooperatives' Wheeling Rates " (Rollo, pp. 68-100).
2 Entitled "A Resolution Modifying the Terms Members' Contribution for Capital Expenditures (MCC) to Reinvestment Fund for Sustainable Capital Expenditures (RFSC) and MCC-Real Property Tax (RPT) to Provision for RPT as Provided in the Rules for Setting Electric Cooperatives' Wheeling Rates (RSEC-WR)" (Rollo, pp. 130-138).
3 Based on their total operating distribution cost and operating distribution cost per kWh, which, in turn, are affected by size (defined as number of customers) and consumption (defined as MWH sales per customers), the RSEC-WR classified the on-grid ECs into seven (7) groups as follows:
GROUP A
Aurora (AURELCO)
Biliran (BILECO)
Camiguin (CAMELCO)
Guimaras (GUIMELCO)
Ifugao (IFELCO)
Kalinga-Apayao
(KAELCO)
Leyte III (LEYECO III)
Mt. Province (MOPRECO)
Quezon II (QUEZELCO II)
Quirino (QUIRELCO)
Siargao (SIARELCO)
GROUP B
Abra (ABRECO)
Antique (ANTECO)
Camarines Sur I (CASURECO I)
Camarines Sur IV (CASURECO IV)
Lanao Del Norte (LANECO)
Leyte I (LEYECO I/DORELCO)
Leyte IV (LEYECO IV)
Misamis Occidental I (MOELCI I)
Eastern Samar (ESAMELCO)
Northern Samar (NORSAMELCO)
Samar I (SAMELCO I)
Samar II (SAMELCO II)
Sorsogon (SORECO I)
Southern Leyte (SOLECO)
Surigao Del Sur I (SURSECO I)
Surigao Del Sur II (SURSECO II)
GROUP C
Bohol II (BOHECO II)
Cagayan II (CAGELCO II)
Camarines Sur III (CASURECO III)
Isabela II (ISELCO II)
Sorsogon II (SORECO II)
GROUP D
Agusan Del Sur (ASELCO)
Bukidnon II (BUSECO)
Cebu III (CEBECO III)
Davao Oriental (DORECO)
First Laguna (FLECO)
Iloilo III (ILECO III)
Maguindanao (MAGELCO)
Misamis Occidental II (MOELCI II)
Misamis Oriental II (MORESCO II)
Negros Oriental 1 (NORECO I)
Nueva Viscaya (NUVELCO)
Pampanga Rural (PRESCO)
Pangasinan I (PANELCO I)
Sultan Kudarat (SUKELCO)
Surgao Del Norte (SURNECO)
Zambales I (ZAMECO I)
Zambales II (ZAMECO II)
GROUP E
Aldan (AKELCO)
Bohol I (BOHECO I)
Bukidnon I (FIBECO)
Cagayan I (CAGELCO I)
Camarines Norte (CANORECO)
Capiz (CAPELCO)
Cebu I (CEBECO I)
Cebu II (CEBECO II)
Davao Del Sur (DASURECO)
Iloilo I (ILECO I)
Iloilo II (ILECO II)
La Union (LUELCO)
Leyte V (LEYECO V)
Negrcs Occidental (NOCECO)
Negros Oriental II (NORECO II)
North Cotobato (COTELCO)
Nueva Ecija I (NEECO 1)
Nueva Ecija II (NEECO II) Area I
Nueva Ecija II (NEECO II) Area II
Pampanga I (PELCO I)
Pangasinan III (PANELCO III)
Quezon I (QUEZELCO I)
Tarlac I (TARELCO I)
Tarlac II (TARELCO II)
V-M-C Rural Electric Service (VRESCO)
Zamboanga Del Norte (ZANECO)
Zamboanga Del Sur I (ZAMBURECO I)
Zamboanga Del Sur II (ZAMBURECO II)
GROUP F
Agusan Del Norte (ANECO)
Albay (ALECO)
Batangas I (BATELEC I)
Benguet (BENECO)
Camarines Sur II (CASURECO II)
Central Pangasinan (CENPELCO)
Davao Del Norte (DANECO)
Ilocos Norte (INEC)
Ilocos Sur (ISECO)
Isabela I (ISELCO I)
Misamis Oriental I (MORESCO I)
Pampanga II (PELCO II)
Peninsula (PENELCO)
San Jose City (SAJELCO)
So. Cotabato (SOCOTECO I)
GROUP G
Batangas II (BATELEC II)
Central Negros (CENECO)
Leyte II (LEYECO II)
Pampanga III (PELCO III)
So. Cotabato II (SOCOTECO II)
Zamboanga City (ZAMCELCO) (Rollo, pp. 75-77).
4Rollo, pp. 85-87.
5Id. at 132-133.
6Id. at 42-43.
7Id at 37, 3683.
8Id. at 102, 107.
9Sergio R. Osmena III v. Power Sector Assets and Liabilities Management Corporation, et al, G.R. No. 212686, September 28, 2015.
10 See Chamber of Real Estate and Builders' Ass'ns., Inc. v. Energy Regulatory Commission (ERC), et al., 638 Phil 542, 556-557 (2010).
11Rollo, p. 105.
12Id. at 103-104.
13Navarro v. Hon. Judge Escobido, 621 Phil. 1, 19 (2009).
14 Jose J. Ferrer, Jr. v. City Mayor Herbert Bautista, etc., et al., G.R. No. 210551, June 30, 2015.
15Liga ng mga Barangay National v. City Mayor of Manila, 465 Phil. 524, 540-541 (2004).
16 Gil G. Cawad, et al. v. Florencio B. Abad, et al., G.R. No. 207145, July 28, 2015.
17 Rule 15 of the IRR of R.A. No. 9136 provides:
Section 5. Ratemaking Design and Methodology.
(a) The ERC shall, in the public interest, establish and enforce a methodology for setting transmission and distribution wheeling rates and Retail Rates for the Captive Market of a Distribution Utility, taking into account all relevant considerations, including the efficiency or inefficiency of the regulated entities, as well as the expansion or improvement of the Transmission facilities pursuant to a plan approved by the ERC under Section 10 of Rule 6 on Transmission Sector, and the Distribution Utilities under Rule 7 on Distribution Sector. The rates must be such as to allow the recovery of just and reasonable costs and a reasonable RORB to enable the entity to operate viably. The ERC may adopt alternative forms of internationally-accepted rate-setting methodology as it may deem appropriate. The rate-setting methodology so adopted and applied must ensure a reasonable price of electricity. The rates prescribed shall be nondiscriminatory and shall take into consideration, among others, the franchise tax. To achieve this objective and to ensure the complete removal of cross subsidies, the cap on the recoverable rate of system losses prescribed in Section 10 of Republic Act No. 7832, is hereby amended and shall be replaced by caps which shall be determined by the ERC based on load density, sales mix, cost of service, delivery voltage and other technical considerations it may promulgate. The ERC shall determine such form of rate-setting methodology, which shall promote efficiency. In case the rate setting methodology used is RORB, it shall be subject to the following guidelines:(i) For purposes of determining the rate base, the TRANSCO or its Buyer or Concessionaire or any Distribution Utility may be allowed to revalue its eligible assets not more than once every three (3) years by an independent appraisal company: Provided, however, That ERC may give an exemption in case of unusual devaluation: Provided, further, That the ERC shall exert efforts to minimize price shocks in order to protect the consumers;18 Rule 65, Sec. 4.
(ii) Interest expenses are not allowable deductions from permissible RORB;
(iii) In determining eligible cost of services that will be passed on to the End-users, the ERC shall establish minimum efficiency performance standards for the TRANSCO or its Buyer or Concessionaire and Distribution Utilities including systems losses, interruption frequency rates, and collection efficiency;
(iv) Further, in determining rate base, the TRANSCO or its Buyer or Concessionaire or any Distribution Utility shall not be allowed to include management inefficiencies like cost of project delays not excused by force majeure, penalties and related interest during construction applicable to these unexcused delays;
(v) Any significant operating costs or project investments of the TRANSCO or its Buyer or Concessionaire and Distribution Utilities which shall become part of the rate base shall be subject to verification by the ERC to ensure that the contracting and procurement of the equipment, assets and services have been subjected to transparent and accepted industry procurement and purchasing practices to protect the public interest; and
(vi) The interest incurred during construction may be capitalized and included in the rate base upon commissioning of the asset.
x x x
19Kalipunan ng Damayang Mahihirap, Inc. v. Robredo, G.R. No. 200903, July 22, 2014 730 SCRA 322, 332-333.
20Chamber of Real Estate and Builders' Ass'ns., Inc. v. Energy Regulatory Commission (ERC), et al, supra, note 10, at 559.
21Heirs of Spouses Hilario and Bernardino N. Marinas v. Bernardo Frianeza, et al., G.R. No. 179741, December 9, 2015.
22 Rule 63, Sec. 1.
23 Rule 3 of the IRR of R.A. No. 9136 provides:
Section 4. Responsibilities of the ERC.
x x x x
(n) The ERC shall have the original and exclusive jurisdiction over all cases contesting rates, fees, fines and penalties imposed in the exercise of its powers, functions and responsibilities and over all cases involving disputes between and among participants or players in the energy sector relating to the foregoing powers, functions and responsibilities.
x x x x
(p) All actions taken by the ERC pursuant to the Act are subject to judicial review and the requirements of due process and the cardinal rights and principles applicable to quasi-judicial bodies.
x x x
24 United Overseas Bank of the Philippines, Inc. v. The Board of Commissioners-HLURB, G.R No 182133, June 23, 2015.cralawred
25Department of Finance v. Hon. Dela Cruz, Jr., G.R. No. 20933 1, August 24 2015.
26Rollo, p.3.cralawred
27 Id. at 98-100.
28 PHILRECA is the national association of all electric cooperatives organized and registered pursuant to the provisions of P.D. No. 269, as amended. (Rollo, p. 3532).
29Rollo, p. 100.
30Yu v. Judge Reyes-Carpio, 667 Phil. 474, 481-482 (2011).
31 Sec, 4 of R.A. 95 13 ("Renewable Energy Act of 2008") provides:
(kk) "On-Grid System" refers to electrical systems composed of interconnected transmission lines, distribution lines, substations, and related facilities for the purpose of conveyance of bulk power on the grid of the Philippines[.]
32Rollo, p. 72.
33Id. at 69.
34Id. at 131.
Pursuant to the declared policy of the State to ensure transparent and reasonable prices of electricity, R.A. No. 9136 mandates distribution utilities like electric cooperatives to functionally and structurally identify, separate and unbundle their rates, charges, and costs. (See Sections 2 (c) and 36 of R.A. No. 9136 as well as Sec. 4 [j.] Rule 3, Sec. 4 [b.] and [m.l Rule 7, and Sec. 3 [a] Rule 15 of its IRR)
36Rollo, p. 78.
37Id. 131.
38Id.
39Id.
40 CREATING THE "NATIONAL ELECTRIFICATION ADMINISTRATION" AS A CORPORATION, PRESCRIBING ITS POWERS AND ACTIVITIES, APPROPRIATING THE NECESSARY FUNDS THEREFOR AND DECLARING A NATIONAL POLICY OBJECTIVE FOR THE TOTAL ELECTRIFICATION OF THE PHILIPPINES ON AN AREA COVERAGE SERVICE BASIS, THE ORGANIZATION, PROMOTION AND DEVELOPMENT OF ELECTRIC COOPERATIVES TO ATTAIN THE SAID OBJECTIVE, PRESCRIBING TERMS AND CONDITIONS FOR THEIR OPERATIONS, THE REPEAL OF REPUBLIC ACT NO. 6038, AND FOR OTHER PURPOSES (Issued and took effect on August 6, 1973)
41 Sec. 2 of P.D. No. 269, as amended by Sec. 2 (a) of R.A. No. 10531 ("National Electrification Administration Reform Act of 2013") which was signed into law on May 7, 2013.
42 Section 16 of P.D. No. 269, as amended by Sec. 9 of R. A. No. 10531.
43 Identical to Sec. 37 of R.A. No. 6038, which was expressly repealed by P.D. No. 269.
44 Sec. 5 (a) Rule 15, IRR of R.A. No. 9136.
45 See Comment of MORESCO I, MORESCO II, BUSECO, CAMELCO, MOELCI-I, MOELCI-II, LANECO, FIBECO, and VRESCO (Rollo, pp. 209, 340, 443, 568, 1033-1034, 1137, 1235-1236, 1359- 1360, 3619). However, in the Comment of LEYECO II, it stated that ECs under the CDA operate for profit; thus, their rates formula is Return-On-Rate-Base (RORB) such that its power rate computation has profit factor component. (Rollo, p. 1848)
46 See Comment of SUKELCO (Rollo, p. 1757).
47 Sec. 4 of R.A. 9513 ("Renewable Energy Act of 2008") provides:
chanRoblesvirtualLawlibrary(jj) "Off-Grid Systems" refer to electrical systems not connected to the wires and related facilities of the On-Grid Systems of the Philippines[.]48 See Answer-In-Intervention of PHILRECA (Rollo, p. 3544).
49 See Comment of impleaded off-grid ECs (BATANELCO, LUBELCO, OMECO, ORMECO, MARELCO, TIELCO, ROMELCO, BISELCO, MASELCO, BANELCO, PROSIELCO, BASELCO, and DIELCO) as well as the Answer-In-Intervention of PHILRECA (Rollo, pp. 860, 2610, 2793, 3071, 3547).
50 See Petitioners' Comment and Reply to Answer-In-Intervention of PHILRECA (Rollo, p. 3928).
51 SEC. 7. Compulsory joinder of indispensable parties. - Parties in interest without whom no finai determination can be had of an action shall be joined either as plaintiffs or defendants.
52Crisologo v. JEWM Agro-Industrial Corporation, G.R. No. 196894, March 3, 2014, 717 SCRA 644, 656.