Opinion for the Court filed by Circuit Judge BROWN.
Oсcidental Permian (“Occidental”) and a number of its subsidiaries petition for review of final orders of the Federal Energy Regulatory Commission (“FERC”) granting negotiated rate authority to Tres Amigas, a proposed energy transmission project. Occidental argues Tres Amigas does not satisfy the criteria FERC has set out as preconditions for such authority. Because we conclude Occidental lacks standing to challenge these orders, we do not reach this question and instead dismiss the petition.
*1025 I
Tres Amigas is a multi-billion dollar energy transmission project bеing developed in New Mexico. Its goal is to tie together all three of the independent electrical grids in the United States. As these grids currently operate, power cannot automatically flow between them but instead must be converted at each interchange. Tres Amigas says its facility will address this problem and remove structural barriers to the movement of power across the country by providing a three-way transmission “superstation” with a transfer capability greater than all the existing interconnections combined. New technological developments will also permit Tres Amigas to move power across the grids at shorter notice and lower cost while at the same time integrating renewable sources of energy like wind and solar power. In order for any of these goals to reach fruition, though, regional utilities will themselves have to build new transmission lines connecting to Tres Amigas, at significant cost. The Tres Amigas project itself is solely an interconnection facility; like a train station without any tracks, it alone connects to nothing.
Under the Federal Power Act (“the Act”), utilities must file tariff schedules with FERC, and FERC must determine that the rates the utility' plans to charge are just, reasonable, and lawful. 16 U.S.C. §§ 824d, 824e. Traditionally, utilities and FERC rely on a cost-based pricing model when assessing the reasonableness of rates. But merchant transmission developers are unlike ordinary utilities. Transmission projects have no preexisting transmission network in which costs can be determined — they seek to create a network, not operate within one — and no captive pool of customers from which they can recoup thosе costs. For these reasons, FERC allows transmission developers to request permission to charge reasonable negotiated rates, rather than cost-based rates. To do so, a transmission project developer must meet a set of criteria designed to ensure that the negotiated rate authority will not lead to unjust rates: among other things, the developer must have no captive customers, must not have the ability to exercise monopoly power, and must bear the full market risk of the project failing.
See Chinook Power Transmission, LLC,
In December 2009, Trеs Amigas filed an application with FERC requesting authorization to sell transmission services at negotiated rates. In its application, Tres Amigas explained that it cannot realistically use cost-based pricing because it has no captive customers and, becаuse its beneficiaries will be in all three grid regions, it will have no regional transmission organization in which it can recover costs or determine cost-based rates. Occidental filed a motion to intervene, protest, and request summary denial of Tres Amigas’s applicatiоn. It argued that Tres Amigas failed to meet the
Chinook
criteria because Tres Amigas has captive customers and would exercise monopoly power while bearing none of the project’s risk. FERC found that Occidental’s concerns were misplaced and apprоved Tres Amigas’s request over Occidental’s objections in March 2010.
Tres Amigas LLC,
II
Before we may reach the merits of Occidental’s objection, we must first be satisfied that Occidental has standing to challenge these orders.
Pub. Util. Dist.
*1026
No. 1 of Snohomish Cnty. v. FERC,
First, Occidental complains that neighboring utilities will themselves have to build transmission lines to connect to Tres Amigas. Those utilities will, Occidental argues, in turn recover the costs of that construction and connection from regional energy consumers like some of Occidental’s subsidiaries. These subsidiaries and other captive customers will thus face higher rates along those transmission lines. This parade of horribles is far too speculative to represent a “concrete” injury to Occidental.
Lujan,
Occidental’s alleged injury necessarily relies on the premises that neighboring utilities will in fact build connecting transmission lines to Tres Amigas, and that they will recover costs from captive customers, and that doing so will mеan higher rates for Occidental’s subsidiaries. None of these eventualities is about to occur. First, it remains possible that no neighboring utility will successfully build a transmission line that connects to Tres Amigas. Though some utilities have apparently “stated their willingness” to do so, Pet. Br. 16, even the most enthusiastic of plans would not give rise to Occidental’s injury since, as Occidental recognizes, those utilities’ plans are “subject to appropriate support and favorable ratemaking treatment from ... regulators,” Payton Aff. ¶ 16 (quoting an interested utility describing its support for the project). No such support has materialized. Those connecting utilities have yet to secure siting and planning approvals, and FERC has made no decision, favorable or otherwise, regarding the rates those connecting utilities would be able to charge their customers.
Even if we knew with certainty that a given utility was going to connect to Tres Amigas, the remaining links in Occidental’s chain of injury remain uncertain. All FERC has done is granted Tres Amigas the authority to negotiate the rates
it
charges connecting utilities; FERC has not granted any utility the authority to recover costs from its customers, or for that matter, to charge any given rate to its customers at all. The question of what rate Occidental’s subsidiaries will pay on future connecting lines would thus be the subject of some future FERC proceeding, at which FERC would have to determine whether
that rate
was just and reasonable.
See Tres Amigas LLC,
In fact, Occidental’s very argument on the merits neatly reveals the paucity of its рresent injury. Occidental claims the project “fails the most basic element of FERC’s merchant transmission policy because
it cannot by itself provide transmission service to anyone
” and because it is “an island that is electronically remote from each of the interconnections.” Pet. Br. 9, 23-24 (emphasis added). But an island that “lеaves it to the neighboring utilities to fund the construction of the interconnecting” lines, Pet. Br. 27, poses no imminent danger to Occidental. Since the Tres Amigas project can itself transmit no energy, it would be other utilities, their independent decisions to connect to the project, and FERC’s future approval of the rates they may charge that may cause an injury to Occidental. Such an injury would result from some future agency action; it is therefore “not traceable” to the agency’s present action.
Commuter Rail Div. of Reg’l Transp. Auth. v. Surfacе Transp. Bd.,
In short, FERC has simply not yet determined or approved the rates Occidental’s subsidiaries will pay — it has not even
been asked
to do so — so it is impossible to say now that Occidental has been harmed. Occidental’s theory of injury “stacks speculation upon hypothetical upon speculation, which does not establish an actual or imminent injury.”
New York Reg’l Interconnect v. FERC,
Occidental responded at oral argument that although it will be able to challenge rates set by connecting utilities at future FERC proceedings, the sixty-day window for a challenge to a FERC order set out in thе Act, 16 U.S.C. § 825l (b), means this is the only opportunity to challenge the decision to grant Tres Amigas negotiated rate authority, Oral Arg. 8:30-11:10. Even if Occidental were correct, it goes astray in insisting there is something unjust about that result. This supposed “catch-22,” as Occidental puts it, is a red herring: Occidental cannot challenge the negotiated rate orders in this Court because Occidental cannot show an injury in fact. Occidental’s lamentations about the absurdity of the “catch-22” thus seem to confuse a result which means it cannot challenge these negotiated rate orders with a result which means no one can challenge these orders. See Pet. Reply Br. 8. The latter is plainly not true; some entity actually harmed by the negotiated rate orders— perhaps a competing transmission project or one of the prospective connecting utilities — could have challenged them. And Occidental, for its part, will have every opportunity to challenge any future orders which do harm its subsidiaries.
Occidental’s remaining alleged injuries suffer from the same flaws. Occidental claims the FERC orders failed to “impose sufficiently stringent limitations” that would “ensure that Tres Amigas’s trаnsmission rates will be held to a just and reasonable level.” Pet. Br. 18-19. This failure, Occidental argues, will increase the energy prices “ultimately paid” by its consumer subsidiaries and reduce the profit margins of its wholesale seller and marketing subsidiaries.
Id.
But because FERC “has not yet determined ... rates,” Occidental’s fear of a “possible rate increase in the future” is “not enough to show the requisite injury.”
PNGTS Shippers’ Grp. v. FERC,
Moreover, Occidental cannot even show it will necessarily suffer the kind of injury discussed in
Environmental Action. As
Occidental acknоwledges, it is just a “potential” customer of Tres Amigas and will not “transfer electric energy or ancillary services over the facility” if Tres Amigas raises its prices “above a competitive rate.” Payton Aff. ¶ 26. In other words, Occidental plans to avoid the injury caused by uncоmpetitive prices by not marketing or selling energy routed through the Tres Amigas facility. As a result, all it has is an “interest in [this] problem,” which does not satisfy the “requirement of aggrievement” for standing.
City of Orrville v. FERC,
Finally, Occidental сlaims that its power marketing subsidiaries will suffer increased competition.
1
We have held that “parties suffer constitutional injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition,”
Louisiana Energy & Power Auth. v. FERC,
Ill
Because Occidental lacks standing to challenge the orders before the Court, we dismiss the petition for review and express no opinion on the merits of Occidental’s objections.
So ordered.
Notes
. Occidental argues its ancillary service subsidiaries will also face increased competition, but FERC expressly reserved this issue for another proceeding.
Tres Amigas LLC,