248 F.3d 1192 (D.C. Cir. 2001)
DEK Energy Company, Petitionerv.Federal Energy Regulatory Commission, RespondentPan-Alberta Gas, Ltd., et al., Intervenors
No. 00-1020
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2001Decided May 4, 2001

On Petition for Review of Orders of the Federal Energy Regulatory Commission
MaryJane Reynolds argued the cause and filed the briefs  for petitioner.
Beth G. Pacella, Attorney, Federal Energy Regulatory  Commission, argued the cause for respondent.  With her on the brief was Dennis Lane, Solicitor.  Susan J. Court, Special Counsel, entered an appearance.
John R. Staffier argued the cause for intervenors PanAlberta Gas, Ltd., et al.  With him on the brief were Marisa  A. Sifontes, Mary Ann Walker and Lee A. Alexander.  Neil  L. Levy, Carl M. Fink and Stefan M. Krantz entered appearances.
Before:  Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge:


1
This dispute arises out of a  proposal to restructure a contractual relationship providing  for the transportation and sale of gas from Pan-Alberta  Natural Gas Ltd. in Canada ("Pan-Alberta") to Southern  California Gas Company ("SoCal").  Petitioner DEK Energy  Company, which sells gas in Northern California, objects to  one element of the transaction.  Under the restructuring, an  entitlement to ship 244,000 million Btu ("MMBtu") per day of  gas from the Canadian border to Stanfield, Oregon was  transferred from Pacific Interstate Transmission Company to  Pan-Alberta's affiliate, Pan-Alberta Gas (U.S.), Inc. ("PanAlberta-US").  DEK objects that, pursuant to the Federal  Energy Regulatory Commission's approval, Pan-Alberta-US  will enjoy a lower rate for this service than DEK believes  would prevail if FERC had not made various legal errors. DEK claims that it will suffer a competitive injury if the gas  in question ends up being sold in Northern California.  Because DEK has not shown that any competitive injury is more  than highly speculative, we dismiss the petition for want of  Article III standing.


2
* * *


3
Under a now superseded agreement, Pan-Alberta sold  244,000 MMBtu per day of Canadian gas to Northwest Alaskan Pipeline Company.  Northwest Alaskan then sold it to  the Pacific Interstate Transmission Company, a wholly owned  SoCal subsidiary that had been created as a middleman to  overcome regulatory restrictions on gas purchases at an international border by local distribution companies such as  SoCal.  Pacific Interstate Transmission used facilities of Pacific Gas & Electric Company Gas Transmission, Northwest  Corporation ("PG&E GT-NW") to deliver the gas to Stanfield, Oregon.  Thereafter the gas traveled on other pipelines  through Ignacio, Colorado to the Arizona/California border  and SoCal's California transmission system.  To fulfill its  delivery obligations for the leg of the journey from the  Canadian border to Stanfield, Oregon, Pacific Interstate  Transmission held 244,000 MMBtu per day capacity on the  PG&E GT-NW pipeline.


4
In 1998 the parties to the agreement filed petitions under   7(b) of the Natural Gas Act (NGA), 15 U.S.C.  717f(b),  and  9 of the Alaska Natural Gas Transportation Act, 15  U.S.C.  719, seeking approval from the Commission for a  restructured arrangement removing Northwest Alaskan and  Pacific Interstate Transmission from the process and allowing  SoCal to purchase Canadian gas directly from Pan-AlbertaUS.  The new agreement provided that Pacific Interstate  Transmission would assign its full entitlement to 244,000  MMBtu/day of PG&E GT-NW's capacity to Pan-Alberta-US,  which would pay the same rate as Pacific Interstate Transmission had.  At the same time, the sales obligation to SoCal  picked up by Pan-Alberta-US was reduced to 144,000  MMBtu/day, thereby leaving 100,000 MMBtu/day in excess  capacity.  As consideration for Pan-Alberta-US's assumption  of these obligations (and the attendant risks), Pacific Interstate Transmission proposed to pay Pan-Alberta-US $31  million.


5
Petitioner DEK sells gas in the Northern California market.  It holds about 11,000 MMBtu/day capacity on PG&E  GT-NW from the Canada/Idaho border all the way to the  Oregon/California border under a firm 20-year contract expiring in 2013.  Its theory of competitive injury stems largely  from the rate structure on PG&E GT-NW, under which  shippers pay (at least) three different rates, evidently depending on the time at which they started taking service (the  lower rates being associated with the earlier dates).  PanAlberta-US enjoys the middle rate, the same as formerly paid by Pacific Interstate Transmission, whereas DEK pays  the highest rate.  (By October 2002, evidently, virtually all  shippers will pay the same rates.)  DEK claims that if Pacific  Interstate Transmission's capacity had been disposed of in  what it regards as the legally required manner, under the  "capacity release" program, the successor shipper would, like  DEK, have been subjected to the highest rate.  Although the  Commission and intervenors (Pan-Alberta and Pan-AlbertaUS) contest this claim, we assume it to be correct.


6
In the proceedings before the Commission, DEK pressed  its contention that the capacity could be transferred only  through the capacity release mechanism;  FERC rejected the  claim on the merits, offering several reasons, including its  view that Pan-Alberta-US was not truly a new or replacement shipper intended to be covered by the generic capacity  release rate policy.  It therefore approved the proposed  restructuring.  See Pacific Interstate Transmission Co., 85  FERC p 61,378 (1998).  DEK reiterated its objections in a  request for rehearing, and was rebuffed again.  See Pacific  Interstate Transmission Co., 89 FERC p 61,246 (1999).  Before us, FERC not only defends its decision on the merits but  presses two jurisdictional defenses.  First it argues that DEK  has failed to establish injury-in-fact as required under Article  III of the U.S. Constitution (and  19(b) as well).  And it  argues that DEK's challenge is a collateral attack on a 1996  rate settlement order, and thus precluded by the 60-day time  limit imposed on petitions for review of FERC decisions.  See  NGA  19(b), 15 U.S.C.  717r(b).  Because of our decision  on Article III standing, we need not reach the other jurisdictional defense and we cannot reach the merits.


7
Article III requires that a petitioner seeking access to  federal courts must allege an "an injury in fact" that is  "concrete and particularized" and "actual or imminent, not  conjectural or hypothetical."  Lujan v. Defenders of Wildlife,  504 U.S. 555, 559-61 (1992) (internal quotation omitted). Here DEK claims only that Pan-Alberta-US's enjoyment of a  lower tariff may injure DEK by enabling Pan-Alberta-US to  sell the 100,000 MMBtu per day in the Northern California  market under conditions that might either completely undercut DEK's sales, or force it to reduce its prices.  There is no  claim that Pan-Alberta-US has yet exploited the PG&E GTNW capacity to sell a single molecule of gas in Northern  California.  As any substantial new delivery of gas into  DEK's market area would presumably tend to lower the  market-clearing price, we take it that Pan-Alberta-US's especially favorable rate is relevant largely because it would  enhance Pan-Alberta-US's ability to sell profitably in DEK's  areas and thus would increase the probability of such entry,  and, moreover, to sell at rates and in quantities that might  force DEK to cut its prices or lose sales.


8
There is quite a gulf between the antipodes of standing  doctrine--the "imminent" injury that suffices and the merely  "conjectural" one that does not.  We have insisted that to  escape the latter characterization the claimant must show a  substantial (if unquantifiable) probability of injury.  In a  recent case involving extension of natural gas pipelines we  said, "The nub of the 'competitive standing' doctrine is that  when a challenged agency action authorizes allegedly illegal  transactions that will almost surely cause petitioner to lose  business, there is no need to wait for injury from specific  transactions."  El Paso Natural Gas Co. v. FERC, 50 F.3d  23, 27 (D.C. Cir. 1995) (emphasis supplied).  In that case  petitioner El Paso, a potential competitor in the Baja California market, claimed to be injured by FERC's decision that  certain local distribution companies attempting to extend  their pipelines into that part of Mexico would not be subject  to FERC regulations but instead to those of the California  Public Utilities Commission.  We found no standing, as El  Paso had failed to show that it was really going to compete in  Baja California, not having satisfied certain pre-conditions to  FERC approval of its entry into that market.  See id.


9
In the present case DEK's claimed injury is similarly too  speculative.  The basic proposition is that FERC's alleged  error increased the likelihood that DEK will be exposed to  additional competition in its Northern California markets-competition weighty enough either to reduce DEK's sales or  force it to cut its prices.  To consider the degree of likelihood,  we need to focus on the alternative outcomes of the proceeding.  There seem to be three relevant possibilities:  (1)  FERC, accepting DEK's view of the law, might have insisted  on applying the regular capacity release procedures, demanding that the rate on the transferred entitlement to ship to  Stanfield be the higher one, and this insistence would have  torpedoed the entire restructuring.  (This is FERC's view of  what would have happened.)  (2) FERC, accepting DEK's  view of the law, might have insisted on the capacity release  provisions, but the restructuring would have survived, and  Pan-Alberta-US would have paid the highest rate for its use  of the Canada-to-Stanfield capacity.  (This is DEK's view of  what would have happened.)  (3) FERC might have acted as  it did, allowing Pan-Alberta-US to use the Canada-toStanfield capacity at the previously prevailing rate.  There is  a fourth alternative:  FERC might have insisted on the  increased rate and the restructuring would have gone  through, but at the higher rate the capacity might have  attracted no takers and the daily 100,000 MMBtu would not  have flowed south from Canada at all.  For DEK this fourth  possibility might have been the most appealing, as it would  likely preclude the gas from ever reaching (and thereby  affecting) the Northern California market, but neither DEK  nor any party asserts it as a possibility and we therefore  discard it.  Accordingly, the key issue is the likely difference  in impact on DEK as between FERC's actual choice (alternative (3)) and the other two.


10
Alternative (1) leaves the capacity in Pacific Interstate  Transmission's hands under the terms of the original agreement.  Superficially that might appear to favor DEK, with  the capacity committed to the SoCal transaction.  But the  restructured deal sought to reduce SoCal's purchase obligation by the very 100,000 MMBtu/day in question, suggesting that that quantity was surplus to SoCal.  Thus, even  assuming that under this scenario the gas proceeds on to  Southern California, we have no clue whether DEK's interest  in the Northern California market is any more jeopardized by  gas that has reached Stanfield, Oregon (as under FERC's  actual order) than by gas held by SoCal in Southern California and viewed by it as surplus.  DEK has given no detail on the location of its Northern California markets, or on the  options for moving gas to those markets from Stanfield or  from Southern California.  We note, purely by way of example, that the distance from Stanfield to San Francisco appears  to be nearly 600 miles as the crow flies and over 800 miles by  road.


11
Under alternative (2) the restructuring goes forward and  the Canada-to-Stanfield rate is higher for Pan-Alberta-US  than under FERC's order.  But it is unclear whether  FERC's order makes it more likely that DEK will be subject  to material competition from Pan-Alberta-US.  Everything  else being equal, DEK would prefer to see potential rivals'  costs high than low.  But the gas reaches Stanfield either  way, and Pan-Alberta-US's decisions whether to sell it in  DEK's Northern California markets or elsewhere will depend  on both gas market conditions there and in alternative markets reachable from Stanfield, and on transportation costs  from Stanfield to the alternative markets.  DEK presents no  evidence on these matters, even though it is entitled on  appeal to supplement the agency record in order to demonstrate standing.  See Western Power Trading Forum v.  FERC, 2001 WL 339469, *4 (D.C. Cir. 2001);  Northwest  Environmental Defense Center v. Bonneville Power Administration, 117 F.3d 1520, 1527 (9th Cir. 1997).


12
At oral argument, counsel for intervenor Pan-Alberta-US  noted that Pan-Alberta-US's current practice is to sell its  capacity on a spot market without any regard to the transported gas's final destination, deferring any long term commitment of the excess capacity.  Some of this gas may well  wend its way into DEK's markets But without more information from which to infer quantities capable of having a market  effect, that is an inadequate basis for saying that that  FERC's decision "will almost surely" cause DEK "to lose  business," El Paso, 50 F.3d at 27, or to cut prices in order to  preserve business.


13
We recognize that whenever a gas vendor secures transport capacity that enables it to ship gas closer to another  vendor at competitive rates, the latter may perceive an increased risk of competition.  But under any of the scenarios  relevant here, the 100,000 daily MMBtu of gas will arrive at a  point several hundreds of miles from DEK's market, with  some vague probability that any gas will actually reach that  market and a still lower probability that its arrival will cause  DEK to lose business or drop its prices.  More is needed to  move an injury from "conjectural" to "imminent."

The petition is

14
Dismissed.

