Fulbright & Jaworski: Hydraulic Fracturing as a Subsurface Trespass, Part 5 in a Series of 5

Fulbright & Jaworski: Hydraulic Fracturing as a Subsurface Trespass, Part 5 in a Series of 5

This article is the final post in a series of five posts.


Hydraulic fracturing activities continue to rise, and are at the center of much debate and litigation focusing on the potential health risks associated with the process. But an emerging issue with fracturing activities, and one that only the Texas courts has addressed with any significance, is whether hydraulic fracturing activities can, or should, lead to actionable subsurface trespass claims.


The Texas Supreme Court has decided a handful of cases dealing with subsurface trespass claims over the years, but only one of those cases, Coastal Oil v. Garza, 268 S.W.3d 1 (Tex. 2006) [enhanced version available to lexis.com subscribers], presents subsurface trespass as it relates specifically to hydraulic fracturing.

However, the Texas Supreme Court's opinions in the other subsurface trespass cases provide valuable insight to the competing interests involved in the issue, and help to inform the Garza decision.

Conclusion

Outside of Texas, where hydraulic fracturing activities are not as prevalent and courts have yet to consider how these activities relate to claims of subsurface trespass, courts can look to the Texas Supreme Court's opinions for guidance.

As the Garza Court's internal debate illustrates, the impact of hydraulic fracturing and its importance to states' economies are sure to be considered by future courts in considering whether to impose liability on fracturing activities, especially in absence of actual damages.

Prepared by Fulbright Fracking Blog Contributing Editor and energy partner Barclay Nicholson and Fulbright energy attorney Brian Albrecht.

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