On February 6, 2015, The Supreme Court of Texas released its second opinion in FPL Farming Ltd. (“FPL”) v. Environmental Processing Systems, L.C. (“EPS”). The Beaumont court of appeals had held that injected fluids that migrate beyond the boundary of the land owned by the surface owner constitute a trespass on a neighbor’s property. The Supreme Court declined to address whether or not subsurface wastewater migration is actionable as a common law trespass in Texas, and instead focused on consent as a general element of a trespass cause of action.
Until recently, subsurface wastewater migration had never been addressed by a Texas appellate court, and the assumption in the disposal industry was that such incursion was not actionable. But the Beaumont Court of Appeals, in FPL v. EPS, concluded that the neighbor does have a trespass claim. The Beaumont Court issued two opinions in the case; the first was appealed to the Supreme Court which reversed and remanded to the Court of Appeals, and the second resulted in the opinion released February 6.
The facts in FPL are these: EPS operates an injection well for non-hazardous waste on land adjacent to the land owned by FPL. FPL had previously objected to an amendment of EPS’s permit that increased the rate and volumes allowed to be injected. The Austin Court of Appeals affirmed the permit amendment over FPL’s objections, ruling that “the amended permits do not impair FPL’s existing or intended use of the deep subsurface.” FPL Farming Ltd. v. Tex. Natural Res. Conservation Comm’n, 2003 WL 247183 (Austin 2003, pet. denied). FPL then sued EPS for trespass and negligence, alleging that injected substances had migrated under FPL’s tract causing damage. FPL lost a jury trial and appealed. The Beaumont Court affirmed, holding that because EPS held a valid permit for its well, “no trespass occurs when fluids that were injected at deep levels are then alleged to have later migrated at those deep levels into the deep subsurface of nearby tracts.” FPL Farming Ltd. v. Environmental Processing Systems, L.C., 305 S.W.3d 739, 744-745 (Tex.App.-Beaumont). The Supreme Court reversed, holding that Texas laws governing injection well permits “do not shield permit holders from civil tort liability that may result from actions governed by the permit.” FPL Farming Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d 306, 314 (Tex. 2011). But the court was careful to say it was not deciding that owners of injection wells could be guilty of trespass if their injected fluids migrated onto other lands. “We do not decide today whether subsurface wastewater migration can constitute a trespass, or whether it did so in this case.” The court remanded to the court of appeals for it to consider the other issues raised by the appeal.
In its second opinion, the Beaumont court held that FPL did have a cause of action for trespass: “[T]he Texas Supreme Court has, by implication, recognized that the law of trespass applies to invasions occurring on adjacent property but at a level beneath the surface.” Testimony was presented that the waste plume affected the briny water in place under FPL’s property, “even though it was not presently using the briny water.” The court said that the briny water belongs to the surface owner, and that EPS’s permits “did not give EPS an ownership interest in the formations below FPL’s property that are at issue in this case.” The court noted that the fact that EPS is using the deep subsurface for commercial purposes indicates that the subsurface levels at issue have economic potential for storing waste, which otherwise, absent its safe storage, has the potential to adversely affect the environment. Thus, without a trespass remedy, a party—in this case, FPL—does not have all of the legal remedies typically available to owners to protect the owner’s right to the exclusive use of its property. EPS also claimed that its trespass onto FPL’s property did no actual harm. The Beaumont court said that EPS had failed to show as a matter of law that no injury had occurred, and that FPL was entitled to a jury trial on that issue.
But the jury had found that EPS had not trespassed. FPL claimed that the jury instruction incorrectly placed the burden on FPL to prove that it had not consented to the injection under its property. The Beaumont court agreed that the burden should have been on EPS to prove that FPL had consented to the injection, and it reversed and remanded the case for a new trial. Id.
In Friday’s opinion, the Supreme Court focused on the jury instruction regarding consent as an element to a trespass cause of action. The Court held that the jury instructions correctly placed the burden of proof of consent on the plaintiff and held that a Plaintiff must prove it did not consent to a trespass in order to recover on a trespass cause of action. Because EPS prevailed at trial, the Court stated that EPS was not harmed by the submission of a jury question asking whether it committed a trespass by causing deep subsurface wastewater to migrate underneath FPL’s property, and, therefore, it need not address whether Texas law recognizes a trespass cause of action for deep subsurface wastewater migration.
So, whether a landowner has a cause of action for trespass from injected fluids migrating under her property is a question that must wait for another case.