Facts:
On June 11, 2015, the Department of Energy (DOE) issued 2015 DOE Circular requiring all Distribution Utilities (DUs) to procure Power Supply Agreements (PSAs) only through Competitive Selection Process (CSP) conducted through a Third Party duly recognized by the ERC and the DOE, which took effect on June 30, 2015. On October 20, 2015, the DOE and Energy Regulatory Commission (ERC) issued a Joint Resolution to adopt a regime of transparent process in securing PSAs where ERC is given the power to issue the appropriate regulations to implement it. On the same day, ERC issued CSP Guidelines which postponed the effectivity of the 2015 DOE Circular (i.e., from June 30, 2015 to November 7, 2015). On March 15, 2016, the ERC again postponed the effectivity of the 2015 DOE Circular (i.e., from November 7, 2015 to April 30, 2016). During the period of postponement, the ERC has allowed DUs to enter into 90 contracts without the mandatory CSP (some of the contracts lasted for 20 to 21 years). Alyansa Para sa Bagong Pilipinas, Inc. (APBPI) filed a petition for Certiorari and Prohibition directly to the Supreme Court.
Issue:
1. Is APBPI justified in filing a petition for Certiorari and Prohibition directly to the Supreme Court?
2. Does ERC have the statutory authority to postpone the date of effectivity of CSP, thereby amending the 2015 DOE Circular which required CSP to take effect on 30 June 2015?
Ruling:
1. Yes, a petition for Certiorari and Prohibition directly to the Supreme Court is a proper remedy.
Although the ERC, in postponing the effectivity date, did not act as tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions, the propriety of filing a petition for Certiorari and Prohibition finds basis in Sec. 1(2), Article VIII of the Constitution to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.
2. No, the ERC does not have the authority to postpone the date of effectivity of CSP. ERC’s power is limited to implementing or executing the CSP
Under the Electric Power Industry Reform Act of 2001 (EPIRA), DOE has the power to issue rules and regulations while ERC has the responsibility to enforce the implementing rules and regulations of the EPIRA as formulated and adopted by DOE. Nothing whatsoever grants the ERC rule-making power to supplant or change policies, rules, regulations, or circulars prescribed by the DOE.
Since the 2015 DOE Circular was issued solely by the DOE, it is solely the DOE that can amend, postpone, or revoke the 2015 DOE Circular unless a higher authority, like the Congress or the President, amends or revokes it. Certainly, the ERC has no authority to amend, postpone, or revoke the 2015 DOE Circular, including its date of effectivity. In this case, ERC unilaterally postponed the effectivity of the mandatory CSP twice. By approving 20-year contracts entered into by the DUs during the period of suspension (i.e., before April 30, 2016), the ERC imposed an effective 20-year freeze to the mandatory CSP.
The Bench and The Bar 