Subsurface Wastewater = Common Law Trespass? TX Supreme Court Silently Answers

Last Friday, the Texas Supreme Court did not answer the question inquiring landowners want to know:

Does wastewater creeping into your land’s groundwater constitute trespass?

 The Supreme Court was looking at a case by rice farmers. The case raised trespass issues after an energy service company injected wastewater 1½ miles below the surface, which encroached under the rice lands. Texas’ 9th Court of Appeals found that there is a valid cause of action for migration of wastewater.

Texas A&M AgriLaw walks through the 3 elements of trespass: (1) enter (2) land of another (3) without consent. The explanation highlights that with these 3 elements, wastewater groundwater trespass remains an unanswered legal question at the Texas Supreme Court. 

This legal trend is expected to produce the right case soon that will produce a jury finding of trespass, and will afford the Texas Supreme Court the opportunity to rule on underground trespass.

 Environmental Processing Sys., L.C. v. FPL Farming Ltd.   Austin American Statesman Agri Law Blog Texas A&M Agrilife Extension Fuel Fix