Wisconsin Gas Co. v. Federal Energy Regulatory Commission

758 F.2d 669, 244 U.S. App. D.C. 349
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 29, 1985
DocketNos. 84-1358 to 84-1360, 84-1364, 84-1407, 84-1408, 84-1413 to 84-1418, 84-1433, 84-1434, 84-1441, 84-1446, 84-1463, 84-1470, 84-1474, 84-1487, 84-1489, 84-1490, 84-1556, 84-1580, 84-1623 and 85-1015
StatusPublished
Cited by21 cases

This text of 758 F.2d 669 (Wisconsin Gas Co. v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisconsin Gas Co. v. Federal Energy Regulatory Commission, 758 F.2d 669, 244 U.S. App. D.C. 349 (D.C. Cir. 1985).

Opinion

Opinion Per Curiam.

PER CURIAM.

The petitioners, MIGC, Inc. (“MIGC”), Arkansas Louisiana Gas Company (“Ark-la”), 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, 1984.1 Petitioners have made allegations of irreparable injury which are speculative, unsubstantiated and of a nature which clearly does not warrant the issuance of a stay. The filing of these motions, therefore, has been an abuse of the judicial process and has wasted the time and resources of this court. We are issuing this opinion for the guidance of the bar because many essentially frivolous stay applications are being filed. Counsel know or may easily learn the requirements for a stay. Applications that do not even arguably meet those requirements, as the present ones do not, should not be filed.

I.

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 Rulemaking2 pursuant to which it proposed to adopt a regulation that would eliminate variable costs from natural gas pipeline minimum commodity bill provisions. Following the submission of comments, the Commission concluded that minimum com-[353]*353modify bills enable a pipeline to recover purchased gas costs in cases where the pipeline does not actually incur such costs. Additionally, the Commission found that if a customer must pay for the gas, whether or not it actually takes the gas, then the customer will not seek lower-priced gas supplies but will continue to purchase gas from the same supplier. To alleviate these problems, the Commission issued Order No. 3803 which declares inoperative any minimum bills which allow recovery of purchased gas costs from a. customer who does not take the gas.4 Several parties filed applications with the Commission for a rehearing and for a stay of the Order. These applications also sought clarification of the Order with respect to whether it applies to minimum take provisions. On July 30, 1984, the Commission issued Order No. 380-A5 in which it granted a stay with respect to the application of the final rule to minimum take provisions, and denied the petitions for rehearing.6 Several parties then petitioned this court for review of the Orders.7 ANR Pipeline Company and Great Lakes Gas Transmission Company moved this court for a stay of the Orders. These parties argued that they would suffer irreparable harm in the absence of a stay because if their customers did not meet their minimum bill obligations, then the pipelines would incur increased liability under the take-or-pay provisions8 in their contracts with producers of natural gas. A motions panel of this court denied the motion on the ground that the petitioners had not demonstrated that in the absence of a stay they would suffer irreparable harm.9

On October 24, 1984, the Commission issued Order No. 380-C10 which affirmed the application of Order No. 380 to minimum take provisions. Petitioner MIGC then moved this court to stay the effect of these Orders to the extent that they apply to the minimum bill and minimum take provisions in its contracts and tariffs. Petitioners Arkla and Transwestern have moved this court to stay the operation and effect of these Orders only to the extent that they apply to minimum take provisions.

II.

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 ap[354]*354peal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958). We believe that analysis of the second factor disposes of these motions and, therefore, address only whether the petitioners have demonstrated that in the absence of a stay, they will suffer irreparable harm.

“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:

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Seidel
443 B.R. 411 (S.D. Ohio, 2011)
In Re Gress
435 B.R. 520 (S.D. Ohio, 2010)
Williams v. Government of the Virgin Islands
51 V.I. 443 (Virgin Islands, 2009)
In re Innovative Communication Co.
50 V.I. 741 (Virgin Islands, 2008)
Berne Corp. v. Government of the Virgin Islands
50 V.I. 681 (Virgin Islands, 2008)
Capitol Paving of D.C., Inc. v. District of Columbia
496 F. Supp. 2d 54 (District of Columbia, 2007)
Federal Election Commission v. Gopac, Inc.
897 F. Supp. 615 (District of Columbia, 1995)
Clipper Cruise Line, Inc. v. United States
855 F. Supp. 1 (District of Columbia, 1994)
District of Columbia v. Group Insurance Administration
633 A.2d 2 (District of Columbia Court of Appeals, 1993)
Maldonado v. Maldonado
631 A.2d 40 (District of Columbia Court of Appeals, 1993)
Housing Study Group v. Kemp
736 F. Supp. 321 (District of Columbia, 1990)
Population Institute v. McPherson
797 F.2d 1062 (D.C. Circuit, 1986)
California Energy Commission v. Johnson
767 F.2d 631 (Ninth Circuit, 1985)
Wisconsin Gas Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Anr Pipeline Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Great Lakes Gas Transmission Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Transwestern Pipeline Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Midwestern Gas Transmission Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Tennessee Gas Pipeline Company, a Division of Tenneco Inc. v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. City Gas Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Madison Gas & Electric Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Wisconsin Fuel & Light Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Wisconsin Natural Gas Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Wisconsin Power & Light Company v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Wisconsin Public Service Corporation v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Intervenors. Panhandle Eastern Pipe Line Company v. Federal Energy Regulatory Commission, Michigan Gas Utilities Company, State of Michigan, Michigan Consolidated Gas Company, Consumers Power Company, Pan-Alberta Gas Ltd., Intervenors. Trunkline Gas Company v. Federal Energy Regulatory Commission, Michigan Gas Utilities Company, State of Michigan, Michigan Consolidated Gas Company, Consumers Power Company, Pan-Alberta Gas Ltd., Intervenors. Migc, Inc. v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Consumers Power Company, Pan-Alberta Gas Ltd., Intervenors. Texas Eastern Transmission Corporation v. Federal Energy Regulatory Commission, Michigan Consolidated Gas Company, Consumers Power Company, Pan-Alberta Gas Ltd., Intervenors. Arkansas Louisiana Gas Company, a Division of Arkla, Inc. v. Federal Energy Regulatory Commission, Pan-Alberta Gas Ltd., Consumers Power Company, Michigan Consolidated Gas Company, Intervenors. Transcontinental Gas Pipe Line Corporation v. Federal Energy Regulatory Commission, Pan-Alberta Gas Ltd., Public Service Commission of the State of New York, Public Service Electric and Gas Company, Kansas State Corporation Commission, Consolidated Gas Transmission Corporation, Washington Gas Light Company, Intervenors. Algonquin Gas Transmission Company v. Federal Energy Regulatory Commission, Pan-Alberta Gas Ltd., Consumers Power Company, Michigan Consolidated Gas Company, Northern Illinois Gas Company, Intervenors. Texas Gas Transmission Corporation v. Federal Energy Regulatory Commission, Consumers Power Company, Pan-Alberta Gas Ltd., Northern Illinois Gas Company, Natural Gas Pipeline Company of America, Intervenors. Pacific Interstate Offshore Company v. Federal Energy Regulatory Commission, Consumers Power Company, Northern Illinois Gas Company, Michigan Consolidated Gas Company, Pacific Lighting Gas Supply Company, Pan-Alberta Gas Ltd., Intervenors. Cascade Natural Gas Corporation, Northwest Natural Gas Company, Washington Natural Gas Company v. Federal Energy Regulatory Commission, Consumers Power Company, Pan-Alberta Gas Ltd., Northern Illinois Gas Company, Michigan Consolidated Gas Company, Intervenors. Arkansas Louisiana Gas Co., a Division of Arkla, Inc. v. Federal Energy Regulatory Commission, Pacific Gas and Electric Company, Intervenors. Transwestern Pipeline Company v. Federal Energy Regulatory Commission, Pan-Alberta Gas Ltd., Intervenors. Migc, Inc. v. Federal Energy Regulatory Commission, Arkansas Louisiana Gas Company, a Division of Arkla, Inc. v. Federal Energy Regulatory Commission
758 F.2d 669 (D.C. Circuit, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
758 F.2d 669, 244 U.S. App. D.C. 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisconsin-gas-co-v-federal-energy-regulatory-commission-cadc-1985.