Last week, the Texas Supreme Court agreed to hear a suit that could determine whether landowners in the state have a cause of action for trespass when water from underground injection wells migrates onto their property.  The Court’s decision in Environmental Processing Systems LC v. FPL Farming Ltd. No. 12-0905 could prompt oil and gas drilling companies to change the manner in which they manage wastewater generated during fracking operations.

The case originated in 1996, after byproducts from Environmental Processing Systems’ (“EPS”) injection wells allegedly leached into and polluted a neighboring aquifer lying more than a mile beneath the surface of FPL’s land.  FPL supposedly planned to use water from the aquifer before it became contaminated.

This is the suit’s second time before the Texas Supreme Court.  Both parties appealed a lower court ruling that found EPS had shown evidence of a trespass but also required EPS to bear the burden of demonstrating that it did not consent to FPL’s conduct.  In their current appeals, EPS contends that common law trespass does not extend to water migration deep below ground, while FPL asserts that landowners in Texas are entitled to use trespass suits as a means to protect subsurface rights.

A decision in favor of EPL could expose oil and gas drillers, which often use injection wells to dispose of wastewater, to litigation brought by landowners who oppose energy development on adjacent lands.  A number of interest groups representing oil and gas companies have filed amicus briefs in support of EPS.

To date, the Texas Supreme Court has avoided addressing whether trespass claims extend to the movement of wastewater deep below ground.  Oral arguments are scheduled for January 7, 2014.

Media Coverage Resources:

Jess Davis, “Drilling Water Disposal Fight Returns To Top Texas Court,” Law360, Nov. 22, 2013.

Jess Davis, “Texas Case Could Make Drillers Rethink Fracking Disposal,” Law 360, Nov. 25, 2013.