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ERC opposes San Miguel Energy Corporation’s application for Injunctive Relief

22 December 2022 /ERC-Planning and Public Information Service

CITY OF MANILA – The Energy Regulatory Commission (ERC), represented by the Office of the Solicitor General (OSG), filed its opposition to San Miguel Energy Corporation’s (SMEC) application for a Temporary Restraining Order (TRO) or Injunction filed before the Seventeenth (17th) Division of the Court of Appeals (CA) on 21 December 2022.

SMEC applied for the TRO to enjoin the ERC Order dated 29 September 2022 which denied SMEC’s motion for price adjustment and directed SMEC and the Manila Electric Company (MERALCO) to uphold the fixed price and the provisions of their Power Supply Agreement (PSA).

In its 34-page opposition, the OSG emphasized that the 17th Division of the CA, has no jurisdiction to issue a TRO since under the law only the Supreme Court can restrain the implementation of the Electric Power Industry Reform Act of 2001 or the EPIRA. OSG asserts that ERC merely exercised its consumer protection mandate and enforced the distribution utilities’ obligation to supply electricity in the least cost manner when it upheld the fixed price and other contractual provisions of the PSA between SMEC and the MERALCO.

It may be recalled that the Fourteenth (14th) Division of the CA earlier issued a TRO in favor of suspending the implementation of the PSA between South Premier Power Corporation (SPPC), another San Miguel subsidiary, and MERALCO.

OSG also stated that a grant of injunctive relief (especially if implemented as a suspension of the SMEC–MERALCO PSA) will have the effect of prejudging the merits of SMEC’s Petition for Certiorari. OSG explained that SMEC’s ultimate prayer in its Petition for Certiorari is for the CA to nullify ERC’s Order dated 29 September 2022 which enjoined MERALCO and SMEC to strictly adhere to the fixed price and financial nature of the agreement. A grant of TRO or suspension of the implementation of the PSA will effectively allow SMEC to obtain its ultimate prayer, that is, to be relieved of its obligation to supply under the contract.

OSG also observed fatal procedural lapses in SMEC’s Petition for Certiorari. According to the OSG, SMEC’s petition should be dismissed since the case should have been elevated to the CA through an appeal – a remedy already unavailable to SMEC due to the lapsed of time to file. Moreover, SMEC’s Petition for Certiorari, said OSG, should also be dismissed for its failure to file the mandatory Motion for Reconsideration in ERC before elevating the issue to the CA.

The ERC and OSG are optimistic that the 17th Division of the CA will carefully consider their opposition given the recent events after the issuance of the TRO and the suspension of the SPPC – MERALCO PSA issued by another division of the collegiate court.


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