Aliens may explore, develop, utilize RE
According to the Constitution (Article XII, Section 2), “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State … The exploration, development, and utilization [EDU] of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens…” To stress, “natural resources” and “all forces of potential energy” are reserved for the EDU of Filipino citizens or of corporations, at least 60 percent of the capital of which is owned by Filipinos. In short, aliens are banned from the EDU of such resources and forces.
HOWEVER, JUSTICE SECRETARY JESUS CRISPIN “BOYING” REMULLA formally opined (in Opinion No. 21, S2022) that renewable energy (RE) especially “solar, wind, hydro and ocean or tidal energy sources” are open to the EDU of foreigners because they are “beyond the ambit of the terms … natural resources … and all forces of potential energy.”
He explained that “natural resources … must be understood to pertain only to those belonging to the same class or kind, or having the same characteristics or qualities as those included in the enumeration it belongs,” pursuant to the statutory construction “principles of noscitur a sociis and ejusdem generis.” The enumeration “accompanying ‘natural resources’ such as lands, fisheries, forests and wildlife … are all susceptible to appropriation.” Thus, “the term ‘natural resources’ could not include the sun, the wind or the ocean as they are not subject to appropriation [or ownership by the state or anyone else]…”
ALSO, ACCORDING TO SECRETARY REMULLA, “Potential energy … is energy relative to its position in a given system, or in basic understanding, it is energy at rest.” In contrast, kinetic energy is “energy possessed by an object, resulting from the motion of that object, or simply put, energy in motion.” He gave this “example, if a ball is held up at head height, it has potential energy relative to [the] floor due to gravity. But when the ball is released, its potential energy decreases and such is transformed into increasing kinetic energy until it hits the floor and stops. The use of the term potential energy necessarily excludes those involving kinetic energy.”
Further, he continued, “Renewable energy sources such as solar, wind, hydro and ocean or tidal … are considered kinetic energy sources” that are inexhaustible and incapable of ownership by anyone. Thus, they cannot be reserved only for Filipinos. All mankind owns them, and their EDU cannot be limited to the nationals of any state.
WHILE I AGREE THAT RENEWABLE ENERGY SHOULD BE OPEN TO FOREIGNERS, not just to Filipinos, my reason is simple. Natural resources like petroleum, oil, coal, gold, and other minerals found in the bowels of our land and maritime territory, as well as in our exclusive economic zone recognized, and/or granted, by the United Nations Convention on the Law of the Sea and the 2016 Arbitral Award won by our country belong to the Philippines and their EDU should be, as they are, reserved solely to Filipinos.
On the other hand, REs and sources of kinetic, as distinguished from potential energy like the sun, wind, and tides are not owned exclusively by Filipinos because they are not found solely in the Philippines. Therefore, our Charter and its framers could not have intended them for the exclusive EDU of our citizens, be they individuals, corporations, or associations.
Moreover, the EDU of these resources requires tremendous amounts of capital, technological know-how, and risks-taking that we do not have or are unwilling to undertake or, even if we have them, are better used for other equally needed goods.
So, too, the end product or services, like electric power, will benefit our people directly. Decidedly, the foreigners who undertake the EDU of these inexhaustible and renewable resources will not be able to sell them viably except to us, given our country’s distance from other countries. The logistics of bringing them abroad will just be too complicated and unprofitable.
Then, there is the RE’s advantage of clean, sustainable, nonpolluting energy that is safe for our planet and healthy for our people. The EDU of these resources will free us from dependence on foreign oil and coal for our energy needs, thereby preserving our foreign exchange reserves while, at the same time, assuring us of enough power and energy to turn the wheels of our industries and factories.
A final word. The EDU of natural resources whether renewable or not, and all sources of energy whether potential or kinetic, and whether open to foreigners or not, are subject to “the full control and supervision of the State.”
