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Fulbright & Jaworski: Hydraulic Fracturing as a Subsurface Trespass, Part 3 in a Series of 5

This article is the third 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 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.

In the 2011 case FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 351 S.W.3d 306 (Tex. 2011) [enhanced version] decided by the Texas Supreme Court, FPL, which owned two tracts of land used for rice farming, sued EPS, which operated a wastewater injection well on land adjoining FPL's tracts.

EPS had a permit from the Texas Commission on Environmental Quality to drill and operate its well. FPL alleged that the injected wastewater likely migrated onto its property and contaminated its water supply, and filed suit based on subsurface trespass.

FPL lost in a jury trial and appealed.

The appellate court did not address the merits of the trespass claim, and instead relied heavily on Manziel [enhanced version].in holding that FPL could not recover because the wells were authorized by EPS's permit.

But the Texas Supreme Court did not give the same deference to the permit, stating that "a permit is not a get-out-of-tort-free card." Id. at 311.

The Court made clear that it was not deciding "whether subsurface wastewater migration can constitute a trespass, or whether it did so in this case," and reversed the court of appeals' judgment and remanded. Id. at 315.

This article will be continued Tuesday.

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

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