Late yesterday, the Beaumont Court of Appeals issued an opinion on remand in FPL v. Environmental Processing Systems. The case involves a claim of subsurface trespass resulting from migration of injectate from an injection well. This opinion is of importance to anyone who operates or relies on the operation of injection wells in Texas.

The plaintiff, FPL, owns surface rights in land adjacent to a non-hazardous wastewater injection well in Liberty County operated by the defendant, EPS. FPL sued EPS for trespass resulting from subsurface migration of injectate. Following a jury trial in which the jury found no trespass, the trial court granted judgment for the defendant. The Beaumont Court of Appeals initially affirmed that judgment on the ground that the injection well permit insulated EPS from liability, but the Texas Supreme Court reversed that decision and remanded for consideration of other issues, including whether Texas recognizes a trespass claim in these circumstances.

On remand, the Beaumont Court of Appeals reversed the trial court judgment and remanded for a new trial. The court held (on an issue of first impression) that Texas recognizes a cause of action for subsurface trespass, although it expressly did not decide whether all of the doctrines that apply to surface trespasses apply on the same basis to a trespass deep below the surface. The court also recognized that FPL has a legal property interest in briny water underneath its property, considering saltwater no different from fresh water. The court concluded that the jury instructions in the original trial were legally flawed, justifying reversal and retrial.

The opinion may be found here. EPS has 45 days in which to petition for review by the Supreme Court.