The Supreme Court of Texas upheld a jury verdict finding that a landowner did not suffer trespass from a wastewater injection well located on adjacent property.  Environmental Processing Systems, L.C., v. FPL Farming Ltd., No. 12-0905, decided February 6, 2015.  While the Court reinstated the trial court’s decision that the landowner takes nothing, the Court refused to decide if subsurface wastewater migration could ever be a trespass.  The Court also refused to analyze the effect on potential trespass claims of the well operator having received a state agency permit for the wastewater injection.

The case has a long history and is somewhat complicated.  Environmental Processing Systems (EPS) first received its permit to inject wastewater into a deep subsurface formation in 1996.  As part of that permitting process, the landowner’s predecessor in title opposed the permit, but dropped its opposition for payment of $185,000 as part of a settlement agreement.  This agreement stated that it was binding on successors-in-title.

In 1999, EPS sought an amendment to the permit to increase the injection volume.  By this time, FPL Farming (FPL) was the landowner, and FPL opposed the amendment.  In the proceeding before the state agency regarding the amendment request, evidence indicated that wastewater would likely migrate under FPL’s property, but the state agency still granted the amendment, and an appellate court affirmed the state agency’s granting of the amended permit in 2003. 

In late 2005, FPL sued EPS, claiming that subsurface migration under its property was a trespass.  FPL lost at trial, because the jury answered “No” when asked if EPS trespassed on FPL’s property.  FPL appealed, claiming that the definition of trespass submitted to the jury made it the landowner’s burden to prove that the subsurface entry by EPS was not authorized.  FPL argued to the intermediate appellate court that authorization is an affirmative defense and that EPS had the burden to prove any authorization.  FPL requested that the intermediate appellate court send the case back to the trial court for a new trial.

In 2009, the intermediate appellate court issued a decision affirming that FPL should take nothing, but for a different reason.  That intermediate court determined that the agency permit for the injection well gave broad protection to EPS, so that as long as EPS did not violate its permit, it did not trespass.  FPL appealed that ruling to the Texas Supreme Court.

In 2011, the Texas Supreme Court reversed the intermediate appellate court, holding that the permit did not give the broad protection advocated by EPS. The Texas Supreme Court sent the case back to the intermediate appellate court for additional analysis on a variety of issues, including the extent of any protection from the permit.

In 2012, the intermediate court issued its re-analysis of the case.  In this second analysis, the intermediate court ruled: 1) subsurface migration of wastewater could be a trespass, despite the permit, 2) EPS, and not the landowner, should have the burden of proof regarding any authorization from the landowner or its predecessor, and 3) the trial court needed to have another full jury trial to decide the issues.  To try to avoid another jury trial, EPS appealed this intermediate court ruling to the Supreme Court, which agreed to hear the case, again.

On February 6, 2015, based on this second appeal from the intermediate appellate court, the Texas Supreme Court issued a new ruling that finally dismissed the case.   The Court ruled that the landowner in a trespass case has the burden of proving that the entry was unauthorized.  The Court held that the trial judge properly presented the question to the jury, and the Court reinstated that FPL take nothing.

Many were hoping that the Texas Supreme Court would use this case as an opportunity to identify the extent, if any, that underground injection permits protect permit holders against trespass claims. However, the Texas Supreme Court refused to make this analysis, and the extent of permit protection is still very much an open question in Texas.

For a copy of the Supreme Court opinion, click here.​​