The Department of Justice has rendered an opinion that the 2023 agreement on peaceful uses of nuclear energy between the Philippines and United States, known as the 123 Agreement, is aligned with the Constitution and laws of the Philippines.
In a legal opinion dated April 1, 2024, Justice Secretary Jesus Crispin Remulla stressed that the provisions of the 123 Agreement are not in conflict with the 1987 Constitution and existing laws, and with the pending nuclear-related bills before Congress for which the DOJ has been involved, such as the proposed measures seeking to amend Republic Act No. 5207 on atomic energy regulation and nuclear civil liability.
“The 123 Agreement is consistent with the state policy against nuclear weapons under Article II, Section 8 of the 1987 Philippine Constitution that states that nuclear material, equipment, and components and those produced from it shall not be used for any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose,” Remulla said.
Assistant Secretary Jose Victor Chan-Gonzaga of the Office of American Affairs of the Department of Foreign Affairs earlier sought the legal opinion on the 123 Agreement, also known as the Agreement for Cooperation between the Government of the Republic of the Philippines and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy, that was signed in the US on Nov. 16, 2023.
Gonzaga asked the DOJ, a member of the Nuclear Energy Program – Inter-Agency Committee (NEP-IAC), if the 123 Agreement is covered under existing legislation like Republic Act (RA) No. 5207, the Atomic Energy Regulatory and Liability Act of 1968, as amended; RA 10697, the Strategic Trade Management Act of 2015; and RA 11479, the Anti-Terrorism Act of 2020.
The DFA official also sought clarification if the 123 Agreement does not conflict with existing laws and related bills pending before Congress.
In his reply, Remulla stressed that the 123 Agreement is covered by RA 5207 as well as Executive Order No. 12, series of 187 which, he cited, “explicitly empowers the Philippine Nuclear Research Institute to license and regulate activities relative to production, transfer and utilization of nuclear and radioactive substances.”
Though RA 5207 may be old, Remulla noted that this has been “complemented by recent laws including but not limited to R.A. No. 10679 of 2015 for the strategic goods control, such as in their importation, exportation, transit, as well as transshipment, and R.A. No. 11479 of 2020 which, despite its silence on nuclear terrorism, punishes acts of terrorism in general.
The DOJ Secretary said that the 123 Agreement explicitly states that the safe and secure use of nuclear energy for peaceful purposes “shall be in accordance with the provisions of this Agreement and their applicable international agreements, national laws. and regulations” and that the “Agreement does not require the transfer of any information that the Parties are not permitted to transfer under their respective international agreements, national laws, and regulations.”
“Considering the foregoing, it is clear that this bilateral accord does not preclude the application of the national laws of the parties, especially of the Philippines, but rather gives way to their enforcement instead,” the DOJ chief added.
Meanwhile, the National Grid Corp. of the Philippines (NGCP) on Monday placed the Luzon grid on yellow alert anew from 1PM to 5PM and 6PM to 8PM, due to thin power reserves.
NGCP said in an advisory that five plants have been on forced outage since 2023, five between January and March 2024, and 10 between April and May 2024; while four others are running on derated capacities, for a total of 2,050.5 megawatts unavailable to the grid.
Available capacity was placed at 14,640 MW while peak demand is seen at 13,446 MW.
A yellow alert is issued when the operating margin is insufficient to meet the transmission grid’s contingency requirement.
Meanwhile, the Center for Energy, Ecology, and Development (CEED), in its report said the red and yellow alerts last month was due to the country’s heavy reliance on large-capacity fossil fuels as the forced outage of just two or three coal or fossil gas-fired power plants can adversely affect the grid.
CEED said the country remains dependent on unreliable and intermittent fossil fuel power plants that have a track record of going on unexpected and prolonged forced outages.
“Unfortunately, even though regulatory measures are in place to manage planned and sanctioned outages and promote efficiency, reliability, and maintenance of power plants, these have not compelled generation companies to maintain their facilities up-to-standards, especially during peak season and critical periods like during an El Niño,” the group said.
CEED identified several solutions such as imposing more stringent price cap regulations, to safeguard consumers from abusive and anti-competitive behaviors.
“Price caps seek to protect consumers exactly from these extreme and sustained increases of electricity prices in the WESM. Under these extraordinary circumstances, the ERC should instead consider shortening the rolling period even further from 72 hours to 24 hours, and examine the possibility of lowering the price cap further,” it said.
CEED said generation companies that breached the maximum allowable outages should be meted with higher fines and penalties, including parent power holding companies and affiliate companies that have been proven to engage in “economic sabotage or pricing play.”
“The fines and penalties currently imposed by the ERC thus far cannot serve their intent to deter future protracted forced outages if these are dwarfed by the profit that the parent holding companies are earning from WESM transactions through their other subsidiary generation companies,” the group said.
CEED also called for a faster implementation of energy efficiency and conservation programs and other demand-side management programs to reduce overall demand and shave off peaking demand.