In a previous issue, we discussed the question of subsurface trespass, which was before the Texas Supreme Court in the case styled FPL Farming Ltd. v. Environmental Processing Systems, L.C. In that case, the Ninth Circuit Court of Appeals in Beaumont held that the operator, Environmental Processing Systems, L.C., (“EPS”) was immune from subsurface trespass liability for an injection well because the Texas Commission on Environmental Quality, (“TCEQ”) properly issued a permit under the “Injection Well Act” found in the Texas Water Code. The Texas Supreme Court reversed the decision and remanded the case to the Ninth Circuit. The Texas Supreme Court held that “the language of the Injection Well Act and the portions of the Texas Administrative Code governing the TCEQ do not shield permit holders from civil tort liability that may result from actions governed by the permit.” Thus, the Texas Supreme Court ordered the Ninth Circuit to consider the trespass action.
On remand to the Ninth Circuit, EPS argued that Texas Law did not recognize a cause of action for subsurface trespass. However, the Ninth Circuit concluded “that Texas law recognizes FPL Farming Ltd.’s (“FLP”) property interest in the briny water underneath its property. We do not agree with EPS that no trespass action exists under Texas law to protect FPL’s legal interest to its property.” The Ninth Circuit also held “that the trial court improperly placed the burden of proving consent to entry on FPL when that burden should have been placed on EPS.” Put more simply, the trial court required FPL to show that a lack of consent to the trespass existed, and the Ninth Circuit held that it was EPS’ burden to prove that consent existed. Now, EPS has appealed this new decision to the Texas Supreme Court, who once again has agreed to the review.
EPS argues that the Texas Supreme Court:
has never recognized a cause of action for trespass due to lateral migration of nonhazardous wastewater deep below the earth’s surface. Until the court of appeals’ decision below, no court in the United States had expanded common law trespass to the deep subsurface and allowed recovery based on mere fluid entry into the subsurface far beneath another’s property.
EPS also argues that:
Even if a cause of action for deep subsurface trespass by fluid migration should be recognized in Texas, that claim was presented to a jury—and the jury found no trespass occurred. The jury charge correctly placed the burden on FPL to prove that EPS entered on its property without its consent.
FPL, meanwhile, claims that the Ninth Circuit correctly held that FPL had a valid trespass claim. They also assert that the Ninth Circuit was correct in requiring EPS to prove that FPL consented to the trespass.
As was noted in the earlier article, trespass (and associated damages) of this sort is difficult, if not impossible, to prove. This difficulty is especially true in light of a 2008 Texas Supreme Court decision which discussed, but did not decide, the existence of a subsurface trespass action. In that case, the Texas Supreme Court provided:
Had Coastal [the alleged trespasser] caused something like proppants to be deposited on the surface of [plaintiff’s land], it would be liable for trespass, and from the 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 — […] — ‘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.
The historical leaning of the Texas Supreme Court, then, seems to be that there simply is no cause of action for subsurface trespass. Although the Texas Supreme Court declined to decide this issue previously, we can hope to receive resolution in the Texas Supreme Court’s newest opinion in this case as to whether such an action exists.
1 Coastal Oil & Gas Corp., et al. v. Garza, et al., 268 S.W.3d 1 (Tex. 2008).