Friday, the Texas Supreme Court issued a unanimous opinion in the case of Environmental Processing Systems, L.C. v. FPL Farming Ltd.,reversing the Court of Appeals for the Ninth District of Texas's finding that EPS had the burden of establishing an affirmative defense that it had the landowner's consent, and that Texas recognizes a common law trespass cause of action for deep subsurface water migration. The environmental and property rights issues affected by deep subsurface wastewater disposal are important to the oil and gas industry as well local and state government permitting agencies and environmental groups.

The EPS case involves claims that contaminated wastewater disposed by EPS in accordance with its deepwater injection well permit had migrated into the deep subsurface groundwater located beneath FPL's adjacent property. FPL sued EPS for injunctive relief, damages for trespass, and unjust enrichment. The jury hearing the case decided that EPS had not trespassed onto the land and property of FPL, in accordance with a jury instruction that there cannot be a trespass if the landowner has consent to the incursion. The jury also rendered a verdict in favor of EPS on all other claims, resulting in a "take nothing" judgment against FPL. The intermediate Court of Appeals, in 383 S.W.3d 274, 289 (Tex. App.--Beaumont 2012), then reversed.

The Texas Supreme Court, after reviewing its trespass law decisions that have been issued beginning with the inception of the Republic of Texas, held that the plaintiff in a trespass cause of action has the burden of proof to establish there was no consent--it is an element of the cause of action and not an affirmative defense the defense must establish. Since EPS prevailed at trial, there is no need for the Court, at this time, to decide whether Texas law recognizes a trespass cause of action for deep subsurface wastewater migration. The Court declined to issue a ruling on whether there is a common law trespass cause of action in Texas for subsurface contamination from wastewater well disposal practices. While the Court has sidestepped the resolution of this issue, the Texas Legislature could, of course, enact appropriate corrective legislation.