Groundwater trespassing questions left unanswered in Texas Supreme Court drilling wastewater ruling

by John Chapman

The Texas Supreme Court issued a recent ruling that raised more questions than answers on the legal issue of whether groundwater contamination from industrial wastewater constitutes trespassing under Texas state law. The court’s ruling in Environmental Processing Systems, L.C. v. FPL Farming, Ltd. was highly anticipated by the energy industry and environmentalists due to its potential to impact on the ongoing tug-of-war between petroleum drillers and water conservationists in Texas. However, the state Supreme Court’s limited ruling in the case offered little clarity to these interests outside the scope of the case.

The case in question involved a dispute between FPL Farming, a farming company that owns land in Liberty County, Texas that is used primarily for rice farming, and Environmental Processing Services (EPS), a wastewater disposal company. In 1997, EPS built a wastewater disposal facility on a five acre parcel of land adjacent to the FPL rice farm. EPS drilled an injection well on the land that was used to shoot more than 100 million gallons of wastewater laced with the flammable liquid acetone and other chemicals about 8,000 feet below ground. This wastewater resulted in the contamination of a brackish aquifer located beneath FPL’s land.

FPL Farming filed a lawsuit against EPS, alleging that the contamination of its groundwater aquifer constituted trespassing under Texas state water regulations. The rice farming company argued that because EPS could have used desalination technology in order to make the brackish wastewater from its injection well drinkable, they were entitled to compensation for trespassing.

A Liberty County jury initially ruled in favor of the wastewater disposal company, but this decision was overturned by a Beaumont appeals court. Oil and natural gas drilling companies were concerned about this verdict because of its potential to impact their ability to dispose of wastewater from well drilling. The ruling also drew attention from water conservationists, who lauded its potential impact on efforts to prevent groundwater contamination from oil and gas drilling. EPS filed an appeal, which was heard recently by the Texas Supreme Court.

In its ruling, the Supreme Court reversed the Beaumont lower court’s ruling and upheld the original jury verdict, but declined to address the issue of whether groundwater contamination committed by EPS constituted trespassing under Texas law. Instead, the opinion by Justice Paul Green focused on the question of whether FPL Farming was required to prove at trial that it had not consented to the alleged trespass by EPS:

Lack of consent is a required element of a trespass cause of action that the plaintiff must prove, and the jury charge here correctly reflected the longstanding definition of trespass in Texas. Additionally, FPL Farming failed to conclusively establish that it did not consent to EPS’s alleged entry in connection with its motion for directed verdict, so the trial court did not err in denying the motion and submitting the issue to the jury. There was no harmful error in excluding the settlement agreement because the jury found for EPS without considering it. Finally, any error in submitting the question of trespass for deep subsurface wastewater migration was harmless because the jury found no such liability, which obviates the need to address whether this is a viable cause of action in Texas. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s judgment that FPL Farming take nothing.

Although the court’s narrow ruling failed to answer the question of whether groundwater contamination constitutes trespassing under Texas law, legal experts say that the decision will have an impact on future water damage or contamination lawsuits filed in Texas by requiring plaintiffs to prove that they did not consent to the trespass violations alleged in their lawsuits. A definitive answer on the questions of groundwater contamination and trespassing will have to be settled by a future ruling, experts stated.

Filing Water Damage Lawsuits in Texas

Although the Texas Supreme Court’s ruling in FPL Farming v. Environmental Processing Systems failed to address questions about trespassing and groundwater contamination from a neighbor’s property, Texas state law is much more clear on other issues regarding the effect of water from a neighbor’s property on your home or land.

The Texas Water Code is a set of laws regarding water rights and administration for the state of Texas. This code contains specific rules regarding water damage to another person’s property. According to the Water Code:

No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

Water flow from another property can cause significant damage to homes and property. Water damage to a home can weaken the structure or foundation of a home or property, cause mold growth in a building, or significantly reshape the contours of your land. All of these events may require costly repairs in order to be fixed. However, homeowners and property owners who experience water damage may be eligible to file a lawsuit against the party who is responsible and recover damages for the injury to their property.

The lawyers at Heygood, Orr & Pearson have handled hundreds of commercial litigation cases involving damages ranging from tens of thousands of dollars to tens of millions. The attorneys at our law firm have represented some of the largest businesses in the world, as well as individuals and small business owners involved in litigation with large corporations.

The first step in filing a water damage claim is to speak with an attorney regarding your case. For a free legal consultation about your legal rights and to learn more about whether you are eligible to file a lawsuit, contact the attorneys at Heygood, Orr & Pearson by calling toll-free at 1-877-446-9001, or by following the link to our free case evaluation form on this website.

by John Chapman

John Chapman is a licensed attorney with experience in complex commercial litigation (including securities fraud, RICO, shareholder oppression, and derivative actions) and personal injury litigation.