Water, water everywhere? From the standpoint of the Texas Supreme Court, it certainly may appear so. On February 8, 2011, the Texas Supreme Court agreed to hear the appeal of a decision of Ninth Court of Appeals of Texas, located in Beaumont, in which an adjacent landowner failed in its suit against an operator for subsurface trespass involving industrial wastewater from a permitted nonhazardous wastewater injection well that migrated to the adjacent land’s subsurface. The Court of Appeals held that the operator, Environmental Processing Systems, L.C., (“EPS”), was immune from trespass liability for the injection well because the Texas Commission on Environmental Quality, (“TCEQ”), properly issued a permit under the “Injection Well Act” found in the Texas Water Code.
What is interesting about the decision in this case is that, prior to the decision, it seemed to be fairly uniformly held by Texas Courts that receiving a permit for an injection well would not shield an operator from trespass liability. In fact, the Texas Administrative Code provides that “the issuance of a permit does not authorize any injury to persons or property or an invasion of other property rights.” The Texas Water Code, Section 27.104 also states that the granting of a permit does not relieve a party from civil liability. The Court of Appeals of Texas, Third District, in Austin, in referencing these rules, determined in 2003, in FPL Farming, Ltd. v. Texas Natural Resource Conservation Commission and Environmental Processing Systems, L.C., (which is a previous lawsuit filed on the same facts and issues as the lawsuit the Texas Supreme Court has agreed to review) that FPL could seek damages from Environmental Processing Systems, L.C., if the wastewater migrated to FPL’s subsurface and caused harm. And the Court of Appeals of Texas, Seventh District, in Amarillo, in 2009, held that “securing a permit does not immunize the recipient from the consequences of its actions if those actions affect the rights of third parties.”
Trespass of this sort, though, is difficult, if not impossible to prove. This difficulty is especially true in light of a 2008 Texas Supreme Court decision which discussed, but did not decide, the existence of a subsurface trespass action. In that case, the Texas Supreme Court provided:
Had Coastal [the alleged trespasser] caused something like proppants to be deposited on the surface of [plaintiff’s land], it would be liable for trespass, and from the common law maxim that land ownership extends to the sky above and the earth’s center below, one might extrapolate that the same rule should apply two miles below the surface. But that maxim -- […] -- ‘has no place in the modern world.’ Wheeling an airplane across the surface of one’s property without permission is a trespass; flying the plane through the airspace two miles above the property is not. Lord Coke, who pronounced the maxim, did not consider the possibility of airplanes. But neither did he imagine oil wells. The law of trespass need no more be the same two miles below the surface than two miles above.
In other words, the apparent leaning of the Texas Supreme Court seems to be that there simply is no cause of action for subsurface trespass. Although the Texas Supreme Court declined to decide this issue previously, it certainly seems ripe for decision in the case before it, and we can hope to find resolution in the Texas Supreme Court’s opinion.