The Texas Supreme Court has ruled that a permit to operate a wastewater injection well does not shield the holder from civil tort liability for allegedly contaminating the property. FPL Farming Ltd. v. Envtl. Processing Sys., L.C., No. 09-1010 (Tex. 8/26/11). In 1996, defendant obtained permits from the Texas Commission on Environmental Quality (TCE Q) to build and operate two deep wastewater injection wells on a tract of land that plaintiff owns and uses for rice farming. Defendant used the wells to inject wastewater-containing substances, such as acetone and naphthalene, into salt water 1.5 miles below the surface. In 1999, defendant obtained amendments to the permits from TCE Q that increased the injection rate.

In 2006, plaintiff sued in state court, alleging that the wastewater had migrated onto its land resulting in a trespass. A jury found that no trespass had occurred, and an appeals court ruled that the TCE Q-issued permits shielded defendant from civil tort liability. Plaintiff appealed.  

While taking note of a conflict among Texas state appeals courts over whether state-issued permits immunize a permit holder from civil liability, the court held that the general rule—that a permit granted by a state agency does not act to immunize the permit holder from civil tort liability to private parties for actions arising out of the use of the permit—prevails over the minority rule. The court reviewed the Texas Injection Well Act, the statute that governs the use of deep subsurface injection wells, and found no legislative intent to immunize a permit holder from private lawsuits. The court reversed the appeals court’s decision and remanded the matter for further proceedings consistent with its ruling.