TX Supreme Court: A Punt on Trespass vis-à-vis Wastewater Injection

Last week, the Texas Supreme court again declined a jurisprudential invitation to rehear a decision that could have potentially broadened the application of a trespass cause of action to industrial wastewater injection underground that pollutes a landowner’s groundwater.

The facts of the case provide that a company drilled an injection well in 1997 on farmland in Liberty County; throughout its lifespan that well injected over 100 million gallons of wastewater several thousand feet subsurface. Wastewater typically contains chemicals and other industrial liquids, and this situation was no different – expert testimony highlighted that the wastewater in this case was laced with acetone, and that the wastewater in question probably reached an underground brackish water acquire beneath the farmland. The farm argued that a desalinator, were it installed, could have made that water drinkable and potable, and subsequently sued for an underground trespass.

At the county level, a jury decision was rendered in favor of the well operator. On appeal, that jury decision was overturned. Upon review by the Texas high court, they chose to dispose of the case on narrower technical grounds and rendered a verdict in favor of the well operator. Brian Sledge, a prominent Austin water lawyer, observed in a Texas Tribune article that the Texas Supreme Court “found a way to avoid issuing that opinion that could have had huge economic and political implications. The impacts to the oil and gas industry would be huge.”

This observation is an apt one. The Texas Supreme Court tends to be cognizant and wary of imposing huge and sudden hurdles on the oil and gas industry absent compelling justification. Should they have determined that a trespass occurred, such a decision would have had significant financial and logistical ramifications for well operators and energy companies; wastewater would need to be removed and disposed of in some other fashion, and trespass causes of action would be broadened from a landowner perspective.

Both cited articles come from The Texas Tribune website.