Typical Common Law Claims: Subsurface Trespass

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

The ability to sue for subsurface trespass remains unclear.  This issue was recently before the Texas Supreme Court, but unfortunately it reversed the case on other grounds.[1]  Despite this ruling, there are at least three cases which suggest that subsurface trespass is a viable cause of action in Texas.  The first was R.R. Comm’n of Tex. v. Manziel, which concerned a permit granted by the Texas Railroad Commission to inject water to flood a reservoir in order to recover oil.[2]  In that case, the Manziels sought to set aside and cancel the permit issued by the Commission to the Whelans, who owned land adjoining the Manziels’ tract, arguing that the injected water would constitute a trespass and would result in destruction of their own well.[3] In its holding, the Court stated that it was “not confronted with the tort aspects” of subsurface injected water migration, nor was it deciding “whether the Commission’s authorization of such operations throws a protective cloak around the injecting operator who might otherwise be subjected to the risks of liability....”[4] Instead, the Court held only that the Commission’s authorizations of secondary recovery projects were not subject to injunctive relief based on trespass claims.[5]

The second case was the highly publicized opinion of Coastal Oil & Gas Corp. v. Garza Energy Trust, which involved whether invasions caused by hydraulic fracturing operations constituted a trespass. [6]  Although declining to rule on the broad issue of whether such intrusions constitute a trespass in general, the Court held that the rule of capture precludes trespass claims that claim drainage of the natural gas as the only injury.[7] 

The third case was FPL Farming Ltd. v. Environmental Processing Systems, L.C., which involved a subsurface trespass claim from a waste water injection well onto a neighboring property.[8] The Beaumont Court of Appeals (relying on the Garza opinion) held that a party was shielded from civil tort liability merely because it received a permit to operate a deep subsurface wastewater injection well.[9]  The court reasoned that “[w]hen a state agency authorized deep subsurface injections, no trespass occurs when fluids that were injected at deep levels are then alleged to have later migrated at those deep levels into the deep subsurface of nearby tracts.”[10]  The Texas Supreme Court disagreed and held that “[a]s a general rule, a permit granted by an agency does not act to immunize the permit holder from civil tort liability . . . for actions arising out of the use of the permit.”[11]  The Supreme Court also distinguished wastewater injection from hydraulic fracturing, as the latter deals with the extraction of minerals, and therefore, the rule of capture would apply which negates the element of injury in a trespass claim.[12] 

On remand, the Beaumont Court of Appeals made some interesting findings.  The court first held that FPL had standing to assert a trespass claim to subsurface water based upon its deeds to tracts to the surface.[13] The court then stated that although the water damaged is briny water and not fresh water, the owner of the surface also owns the saltwater in place beneath the surface.[14] EPS suggested that it should have the right to use the storage potential of the unexploited space below FPL’s tracts, as Texas gave it permits that allowed it to dispose of the waste there.[15]  In response, the court stated that:

While it is true that FPL has not sought or received a permit to store non-hazardous waste beneath its property, it presented testimony to the jury that it never consented to EPS’s use of FPL’s property for that purpose. And, EPS’s permits merely represent the TCEQ’s authorization for a landowner to exercise the rights the landowner possesses by virtue of its ownership of the fee: the permits did not give EPS an ownership interest in the formations below FPL’s property that are at issue in this case. Additionally, the fact that EPS is using the deep subsurface for commercial purposes indicates that the subsurface levels at issue have economic potential for storing waste, which otherwise, absent its safe storage, has the potential to adversely affect the environment. Finally, the Legislature has not provided adjoining landowners of tracts used to inject nonhazardous waste with a right to pool their affected properties, allowing adjacent owners to obtain revenue for the commercial storage value of their subsurface. Thus, without a trespass remedy, a party—in this case, a limited partnership—does not have all of the legal remedies typically available to owners to protect the owner’s right to the exclusive use of its property.[16]

The court then concluded that Texas law recognizes FPL’s property interest in the briny water underneath its property and that FPL has a cause of action for subsurface trespass under common law against EPS to protect its legal interest in the property.[17]

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[1] See Environmental Processing Systems, L.C., 457 S.W.3d at 425.

[2] 361 S.W.2d 560, 562 (Tex.1962).

[3] Id. at 561, 565.

[4] Manziel, 361 S.W.2d at 566.

[5] Id. at 568.

[6] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11–12 (Tex. 2008).

[7] Id. at 12–13.

[8] FPL Farming v. Envtl. Processing, 351 S.W.3d 306 (Tex. 2011).

[9] Id. at 744.

[10] Id.

[11] FPL Farming, 351 S.W.3d at 310–15.

[12] Id.

[13] FPL Farming Ltd. v. Environmental Processing Systems, L.C., 383 S.W.3d 274, 279-280 (Tex. App.—Beaumont 2012, no pet.).

[14] Id. at 281.

[15] Id.

[16] Id. at 282.

[17] Id.

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