Is Wastewater Migration From Disposal Wells A Trespass Under Texas Law? The Texas Supreme Court Declines to Answer

In Environmental Processing Systems, L.C. v. FPL Farming Ltd., a landowner sued the operator of a neighboring wastewater disposal facility on the theory that deep subsurface wastewater trespassed beneath the landowner's property. On February 6, 2015, after a series of appeals, the Texas Supreme Court ultimately reversed the court of appeals and reinstated the trial court's take nothing judgment against the landowner. The Court held that lack of consent is an element of a trespass cause of action that the landowner failed to prove. In doing so, the Court declined to answer whether deep subsurface wastewater migration is actionable as a common law trespass under Texas law. An electronic copy of the Court's opinion can be accessed here.

Factual Background In 1996, Environmental Processing Systems (EPS) leased a five-acre tract where it operated a wastewater disposal facility under a permit from the Texas Natural Resources Conservation Commission, now known as the Texas Commission on Environmental Quality. FPL Farming subsequently bought an adjacent tract that it primarily used for rice farming.

In 1999, EPS applied to amend its TNRCC permits to increase the volume of wastewater EPS could inject. FPL Farming protested the application on the basis that wastewater would likely enter the subsurface of FPL Farming's land. The TNRCC granted the amendment over FPL Farming's objection, and FPL Farming appealed to the district court. The district court affirmed the amendment, and the court of appeals affirmed the district court, noting that "should the waste plume migrate to the subsurface of FPL Farming's property and cause harm, FPL Farming may seek damages from EPS."

Procedural Background Approximately three years later, FPL Farming sued EPS for injunctive relief and damages for trespass, negligence and unjust enrichment. FPL Farming alleged that wastewater migrated into the deep subsurface of its land, possibly contaminating the briny ground water beneath it. The jury charge defined "trespass" as "an entry on the property of another without having consent of the owner." FPL Farming unsuccessfully objected to this definition, arguing that consent should be treated as an affirmative defense. The jury found that EPS did not commit a trespass and the trial court entered a take nothing judgment in favor of EPS. FPL Farming appealed.

The parties' first trip to the Supreme Court resulted in the Court holding that a government issued permit does not shield...