Texas Supreme Court Rules That anInjection Permit Does Not Preclude a Subsurface Trespass Claim

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Introduction

On August 26, 2011, the Texas Supreme Court reversed and remanded a decision by the 9th Court of Appeals that determined that holders of underground injection well permits issued by the Texas Commission on Environmental Quality (TCEQ) are immune from civil liability.1 The Appellate Court had determined that the plaintiff in this case was barred from recovering in tort for subsurface trespass damages because the wells had been authorized by the TCEQ.

In reversing the Appellate Court's decision, the Supreme Court held that merely obtaining a permit to conduct regulated activities from the appropriate state regulatory agency does not shield the permit holder from civil liability. The Supreme Court relied on provisions in the Injection Well Act that specifically address the issue, stating, "[t]he fact that a person has a permit issued under this chapter does not relieve him from any civil liability,"2 the general view of the legal effect of an administrative permit, and prior case law.

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