Case Digest

CA-G.R. CV No. 78049 November 02, 2005

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EVANGELINE AALA, MANUEL MARANAN, RAMON UY LIM, JOSE UY, JR., IGNACIO PATAL, REMEDIOS TAMANI, EXCELSIOR DANGILAN, DR. DOMINGO REMIGIO, ROGER BAGALAY, BERT VILALOBOS, ZALDY PASCUAL and MARLYN CASTILLO, plaintiffs-appellants, vs. GLOBE TELECOMS, INC., defendant-appelle FACTS:
This is an appeal on the decision of Regional Trial Court (RTC) which dismissed the petition of herein appellant for injunction and/or temporary restraining order (TRO) plus damages against Globe Telecoms, Inc (Globe) in its construction of a cell site antenna tower of the Base Transceiver Station (BTS) in Brgy. Solano, Nueva Vizcaya. On May 2002, petitioners (herein appellant) alleged that the construction of the BTS is not in accordance with laws & was constructed without the required permits, clearances and certifications, such as barangay clearance, Environmental Clerance Certificate (ECC) and others. Petitioners, prior to construction registered their opposition on the grounds of security and safety and it being health hazard. Globe appears to use the populated areas for location of BTS as a shield from foreseen terrorist. 72-hour TRO was issued to complete within 20-day period. During the hearing, petitioners presented witnesses these include Dr. Ayahao who deals with diseases and various studies on radiation. Based on his write up, there were various health effects observed in relation to the specific level of radiation density. Another witness is a police officer who testified that there are various bombings of cell site in different areas although there has no actual attack right in the center of Solano. Another witness is Engr. Emocling, who testified that all project listed under Proclamation 2146, which includes those project that were environmentally critical needs to procure an ECC. Accordingly, Nueva Vizcaya is a part of the watershed that supports a hydro electric dam, although he has not seen any policy stating that Nueva Vizcaya is a watershed reservation. However, although in his opinion as he inspects the area, a possible environmental impact of the cell site, namely dust and noise emission and possibly radiation. Otherwise, the Globe was recommended to submit an Environmental Impact Statement (EIS) due to strong public opposition for the installation of the proposed project. On the other hand, Dr. Peralta, director of Bureau of Health Devices and Technology attached to Department of Health, who stand as amicus curiae, testified that they do on site measurement for various cell sites all over the country to check if companies comply with the requirements and to validate the calculation of safe distances made by them. She said that her office received from Globe copy of the actual report regarding the Solano cell sites. In addition, issued statement of WHO present scientific knowledge does not prove the radiation form from this transmitter could cause cancer. Globe adopts the testimony of Dr. Peralta as

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basis for its motion to dismiss the case. The court a quo rendered its decision in favor of Globe. Hence, this appeal to Court of Appeal.

ISSUE: 1. Whether or not an ECC or EIS is required to be submitted by the defendant GLOBE before operating its cell site in the said area? 2. Whether or not the proposed cell site will prejudice the health, safety and security concerns of the petitioners and other stakeholders? 3. Whether or not a writ of injunction should be issued to restrain the defendant GLOBE from putting up and operating its cell site in the said area?

HELD 1. No. The appellee need not secure an ECC before putting up its cell site in Solano, Nueva Vizcaya. The claim that the province is to be considered as environmentally critical, it being a part of the watershed that supports the hydro-electric dam in Isabela is untenable as there is no showing that said area was declared by law a watershed reserve nor was it declared by the President as an environmentally critical area as stated in Section 4 of P.D. 1586. Neither is the installation of the cell site, an environmentally critical project as it is not one of those listed under Proclamation NO. 2146. Moreover, Memo Circular No. 4, Series of 2002 issued by the Environmental Management Bureau of the DENR listed the BTS as one of those telecommunications projects which are not covered by the EIS System, and as such, an ECC is not required prior to implementation of the abovementioned project. 2. No. Appellants were not able to prove the averments in their petition on the alleged tremendous hazard on security, safety and health in the construction and operation of the BTS. Mere allegations are not evidence. Appellants relied upon the testimony of Dr. Ayahao who is not a recognized technical expert on radiation, as well as on electromagnetic forces and health effect on the individual of non-ionizing radiation. While, the testimony of amicus curae, Dr. Peralta, stating that present scientific knowledge does not prove that radiation from this type of transmitter could cause cancer was supported by the statement of the WHO. The appellate court also agreed with the trial courts finding on the petitioners fear of terrorist attack and its adverse environmental impact, that these are all unsubstantiated facts. A terrorist attack transcends considerations of time and place. Nor did the petitioners adduced sufficient evidence to show how the putting up of cell site will adversely affect the hydro-electric dam in Isabela.

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3. No. The main action for injunction is distinct from the provisional remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment of final order. It persists until is dissolved or until the termination of the action without the court issuing a final injunction. The appellate court sustain the trial courts dismissal if the main action for injunction. Appellants were not entitled to a writ of preliminary injunction, much more to a judgment embodying a final injunction. Appellants failed to prove that they are entitled to have construction and installation of appellees BTS complained of permanently or perpetually enjoined.

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