Texas Justices Skirt Underground Trespassing Question

If industrial wastewater pollutes your groundwater, can you sue for trespassing? 

Energy and water interests have been waiting for an answer to that question amid a tug of war over brackish groundwater aquifers. Petroleum companies see them as underground trash cans for liquid waste, which they currently dispose of in thousands of active wells across the state. 

But others worry that some of the noxious stuff being pumped underground could be tainting future drinking water supplies, just as brackish underground water is becoming a more cherished resource. 

The Texas Supreme Court on Friday offered no clarity in its ruling on a closely-watched case that pitted a waste disposal company against a rice farm in Southeast Texas. 

Beginning in 1997, Environmental Processing Services drilled an injection well near FPL Farming's land in Liberty County, shooting more than 100 million gallons of wastewater 8,000 feet below ground over time. Experts testified that the wastewater, laced with flammable liquid acetone and other chemicals, likely reached a brackish aquifer beneath the neighboring farm's land. Arguing that desalination technology could have made the brackish water drinkable, the farm demanded compensation for trespassing.

After a Liberty county jury sided with the well operator, an appellate court in Beaumont reversed that decision, ruling that a well operator could be held liable for trespassing. That conclusion stirred concerns among oil and gas producers who feared the precedent would make it harder to get rid of drilling waste.

But on Friday, the justices avoided that debate, using narrower grounds to simply uphold the jury's original decision. 

"They found a way to avoid issuing that opinion that could have had huge economic and political implications," said Brian Sledge, a water lawyer in Austin."The impacts to the oil and gas industry would be huge." 

The court largely focused on a separate issue: whether the rice farmers were required to prove at trial that they hadn't consented to the well driller's supposed trespass. They had not. 

“Today we hold that the jury instruction properly included lack of consent as an element of a trespass cause of action that a plaintiff must prove,” Justice Paul Green wrote, adding that the court declined to “address the remaining question presented in this appeal—namely, whether deep subsurface wastewater migration is actionable as a common law trespass in Texas.”

Though narrower than lawyers and policy wonks may have liked, the court’s opinion could affect future property rights disputes, experts said.   

“This will matter for someone who wants to argue if your fence trespasses on my property,” said Joe De La Fuente, a lawyer at the Austin-based firm Lloyd Gosselink. “The plaintiff is going to have to make sure they prove they didn't consent to trespass.”

The state's highest civil court previously weighed the idea of underground trespassing in a different context.

In 2008, it ruled against a group of mineral owners who sued  Coastal Oil & Gas. The owners said that Coastal's drilling had drained some of the gas from beneath their adjacent properties – amounting to trespassing. The court said Texas’ “rule of capture” — mineral owners' nearly unfettered right to the oil and gas produced by wells on their property — barred neighboring mineral owners from recovering royalties on any gas they lost.

But had fracking been found to damage the neighboring property in other ways (in that case, it had not), the court said the owners could be liable for trespass.

For now, all those who might have been impacted by a stronger ruling on trespassing — which is virtually anyone that has interest in underground water supplies — must wait for another lawsuit to percolate up to the state's high court.