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
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
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.
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