Opinion Per Curiam.
The petitioners, MIGC, Inc. ("MIGC"), Arkansas Louisiana Gas Company ("Arkla"), and Transwestern Pipeline Company ("Transwestern"), have moved this court to stay the operation and effect of three orders issued by the Federal Energy Regulatory Commission (the "Commission"). This court denied the motions for stay by an order dated December 18, 1984.
The petitioners are interstate pipelines which sell natural gas under contracts, tariffs, and certificates approved by the Commission. These contracts and tariffs, and those of other interstate pipelines, often contain minimum commodity bill and minimum take provisions. A minimum commodity bill requires a pipeline customer to pay the full commodity charge for a minimum volume of gas, whether or not the customer purchases that amount of gas. A minimum take provision requires a pipeline customer to take physically a certain amount of gas and does not offer a pipeline customer an option to pay for gas not taken. On August 25, 1983, the Commission issued a Notice of Proposed Rulemaking
On October 24, 1984, the Commission issued Order No. 380-C
The factors to be considered in determining whether a stay is warranted are: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;
"The basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). Although the concept of irreparable harm does not readily lend itself to definition, the courts have developed several well known and indisputable principles to guide them in the determination of whether this requirement has been met.
First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief "will not be granted against something merely feared as liable to occur at some indefinite time," Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 291, 75 L.Ed. 602 (1931); the party seeking injunctive relief must show that "[t]he injury complained of [is] of such imminence that there is a `clear and present' need for equitable relief to prevent irreparable harm." Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 307 (D.D.C.), aff'd, 548 F.2d 977 (D.C.Cir.1976) (citations and internal quotations omitted).
It is also well settled that economic loss does not, in and of itself, constitute irreparable harm. As this court has noted:
Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d at 925. Recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant's business. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 n. 2 (D.C.Cir.1977).
Implicit in each of these principles is the further requirement that the movant substantiate the claim that irreparable injury is "likely" to occur. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d at 843 n. 3. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur. The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future. Further, the movant must show that the alleged harm will directly result from the action which the movant seeks to enjoin.
Despite these well-settled principles, the petitioners have premised their motions for stay upon unsubstantiated and speculative allegations of recoverable economic injury.
The petitioners' first allegation of irreparable injury is that if their customers are not contractually obligated to purchase a minimum amount of gas, then the petitioners cannot ensure that they will be able to purchase gas on a reliable basis, and their suppliers will therefore probably refuse to contract with them for the sale of gas. In addition to the fact that it would be extremely difficult to prove that petitioners' alleged loss of supply would be a result of the Commission's Orders, none of the petitioners has provided any evidence that a single supplier has stated an intention to cease contracting, or even that any supplier believes that any of the petitioners is now an unreliable purchaser. Therefore, this allegation is purely hypothetical and will not be considered by this court.
Even if petitioners could prove that this purely hypothetical chain of events would occur, this type of recoverable economic harm does not warrant the issuance of a stay. There are several possible means by which the petitioners could recover these prepayments. First, it is as likely as not that the pipelines will recover the payments during the make-up period. Second, neither petitioner has presented any evidence that any pipeline has ever forfeited a prepayment. Indeed, in those cases where make-up periods have expired, the parties have renegotiated their contracts so that the payment would not be forfeited.
The petitioners have also failed to show that the first step in this scenario is likely to occur. To prove that the injury is likely to occur, petitioners would at a minimum have to show that their customers are going radically to reduce their takes, and that the pipelines cannot mitigate this loss by selling the gas to other pipeline customers. Neither petitioner alleges that its customers have reduced their takes to such an extent that it has incurred increased take-or-pay liability or that this liability is presently a real possibility. In fact, Transwestern concedes that one of its customers is now taking more than it was obligated to purchase under its minimum take contractual provision.
Finally, the allegations made by petitioners are so speculative and hypothetical that it would be difficult to conclude that irreparable injury would occur even if the allegations were supported by evidence. The fact that petitioners have not attempted to provide any substantiation is a clear abuse of this court's time and resources.
Arkla and Transwestern further argue that they will suffer from wide swings in takes as a result of the Commission Orders. Transwestern alleges that it does not have the facilities to serve as a swing supplier and thus will suffer irreparable injury. Arkla does not state what harm it will incur from these wide swings. We find these allegations to be the most specious.
Petitioners have not demonstrated that they will suffer irreparable injury in the absence of a stay. Indeed, the showings made fall so far short that these petitions should not have been filed. The motions for stays are denied.
49 Fed.Reg. 22,778, 22,792 (1984).