TX High Court Declines to Address Trespass Issue in Wastewater Migration Case

On February 6, 2015, the Texas Supreme Court issued a decision in Environmental Processing Systems, L.C. v. FPL Farming Ltd. Although landowners and energy companies were hoping for a definitive answer on subsurface trespass, the court sidestepped the issue.

FPL Farming Ltd. owned surface and non-mineral subsurface rights to land, which it used for rice farming. Environmental Processing Systems, L.C. leased a small, adjacent property where it operated a wastewater disposal facility, pursuant to a permit from the Texas Natural Resource Conservation Commission (now known as Texas Commission on Environmental Quality (TCEQ)). FPL sued for injunctive relief alleging, among other things, trespass, and alleged EPS trespassed when wastewater migrated onto its property. The jury rendered a defense verdict finding in favor of EPS.

Through a series of appeals, this case came before the court on the narrow issue of whether the jury instruction properly included lack of consent as an element of a trespass cause of action that a plaintiff must prove. The Supreme Court found the jury charge provided the well-established definition of trespass, including lack of consent or authorization as an element of the cause of action. The court reversed the Court of Appeals for the Ninth District and reinstated the trial court’s judgment that FPL take nothing.

Importantly, the court expressly declined to rule on “whether Texas law recognizes a trespass cause of action for deep subsurface water migration.” Therefore, we can expect additional lawsuits from future plaintiffs claiming neighboring wastewater injections constitute trespass.

Keywords: energy litigation, trespass, consent, surface rights, subsurface rights subsurface trespass, subsurface water migration, wastewater disposal, wastewater injections, Texas Commission on Environmental Quality, TCEQ

_{Christina A. Denmark is with Steptoe & Johnson PLLC in Houston, Texas.}

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