Texas Supreme Court Sidesteps Subsurface Trespass Issue

Last Friday, February 6, 2015, the Texas Supreme Court released its eagerly awaited opinion in Environmental Processing Systems, L.C. v. FPL Farming, Ltd., 58 Tex. Sup. J. 293 (Tex. 2015). Unfortunately, what many energy companies and landowners had hoped would be the definitive tome on subsurface trespass, was not.

The fracking boom has resulted in renewed interest in the law of subsurface trespass. Not only may fracture treatments extend across property boundaries, but millions of gallons of wastewater that may contain salt, chemicals, heavy metals, and sometimes-radioactive material, is often disposed of by being injected deep underground. This material has the potential to migrate across property lines.

The Texas Supreme Court's first modern subsurface trespass case arising from fracking was Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008). There, the plaintiff alleged that hydraulic fracturing of a natural gas well extended into its property and constituted a subsurface trespass. It sought as damages the value of gas drained as a result of the fracture treatment. The Supreme Court avoided the subsurface trespass issue by invoking the rule of capture. It held that "actionable trespass requires injury" and that, under the rule of capture "the gas [plaintiff] claims to have lost simply does not belong to him."

The Court, however, made some tantalizing observations about the law of subsurface trespass:

Had Coastal caused something like proppants to be deposited on the surface of Share 13, it would be liable for trespass, and from the ancient common law maxim that land ownership extends to the sky above and the earth's center below, one might extrapolate that the same rule should apply two miles below the surface. But that maxim - cujus est solum ejus est usque ad coelum et ad inferos - "has no place in the modern world." Wheeling an airplane across the surface of one's property without permission is a trespass; flying the plane through the airspace two miles above the property is not. Lord Coke, who pronounced the maxim, did not consider the possibility of airplanes. But neither did he imagine oil wells. The law of trespass need no more be the same two miles below the surface than two miles above.

So then, just what is the law of subsurface trespass in Texas? The Court in Garza did not say. It did, however, hold that "mineral lessors with a reversionary interest have standing to bring an action for subsurface...