TEXAS SUPREME COURT ISSUES RULING ON SUBSURFACE TRESPASS FROM FRACKING

By TONI ELLINGTON

The Texas Supreme Court has issued its long-awaited opinion in Environmental Processing Systems, L.C. v. FPL Farming, Ltd., 58 Tex. Sup. J. 293 (Tex. 2015), a case in which an alleged subsurface trespass related to fracking operations was at issue.  The case has been working its way through the Texas judicial system for more than ten years.

Because of the increase in hydraulic fracturing operations in Texas, subsurface trespass of wastewater has become an important issue.   Fracking can cause wastewater containing salt, chemicals, heavy metals, and sometimes radioactive materials which are injected deep into the earth to extend across property lines. In its opinion, the court expressly declined to address whether wastewater that migrates onto an adjoining property is considered a trespass.

The facts and procedural history of the case are as follows.  FPL Farming Ltd. (“FPL”) owns the surface and non-mineral subsurface rights to land in Liberty County, Texas.  The land is used primarily for rice farming.  Environmental Processing Systems, L.C. (“EPS”) leased a small parcel of land on adjacent property where it operated a wastewater disposal facility.  FPL claimed that EPS committed a subsurface trespass when its wastewater migrated onto FPL’s property approximately 8,000 below the surface.

FPL sued EPS in state court in Liberty County, seeking injunctive relief and alleging trespass, unjust enrichment, and negligence.  See FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 305 S.W. 3d 739, 741 (Tex. App. – Beaumont 2009).  A jury ruled against FPL on all causes of action.  The jury’s verdict was affirmed by the Beaumont Court of Appeals, which held that there was not actionable trespass because The Texas Commission on Environmental Quality (“TCEQ”) issued permits for EPS’s injection wells.  FPL appealed to the Texas Supreme Court, which reversed on the basis that a TCEQ permit could not shield EPS from tort liability.  The case was remanded to the Court of Appeals for consideration of the trespass claim.  On remand, the Beaumont Court of Appeals reversed the judgment on procedural grounds.  Both parties then petitioned the Texas Supreme Court.

Although the Texas Supreme Court reversed the Beaumont’s Court of Appeals’ ruling, it decided the case on the narrow ground that there was no error because the burden of proving lack of consent belongs with the plaintiff.  The court did not decide whether wastewater that migrates under adjoining property is considered a trespass.

Since the Texas Supreme Court avoided the trespass issue, future lawsuits are likely raise claims of subsurface trespass for wastewater migration.  

For more information, contact Toni Ellington at (504) 599-8500.