Subsurface Trespass Remains Undecided in Texas

In Envtl. Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905, 2015 Tex. LEXIS 113 (Feb. 6, 2015), the Supreme Court of Texas concluded that lack of consent is a required element of common law trespass, but declined to address whether subsurface wastewater migration is actionable as a common law trespass in Texas.

The dispute in Envtl. Processing Sys., L.C. v. FPL Farming Ltd. arose between FPL Farming Ltd. (“FPL Farming”), who owned a rice farm in Liberty County, Texas, and Environment Processing Systems (“EPS”), who leased an adjacent tract of land upon which it constructed and operated a wastewater disposal facility.  Id., at *4.  The Texas Natural Resource Conservation Commission (TNRCC), a predecessor regulatory agency to the Texas Commission on Environmental Quality (TCEQ), properly permitted the EPS wastewater disposal facility in 1996.  Id.  In 1999, EPS applied to the TCEQ to amend its permit to increase the volume of wastewater it could inject into the Frio Formation.  Id.  FPL Farming contested the permit amendments, but the Third District Court of Appeals ultimately rejected its claims.  Id.  However, the Third District noted the possibility that “should the waste plume migrate to the subsurface of FPL Farming’s property and cause harm, FPL may seek damages from EPS.” Id.; FPL Farming, Ltd. v. Tex. Natural Res. Conservation Comm’n, No. 03-02-00477-CV, 2003 Tex. App. Lexis 1074 (Tex. App. – Austin Feb. 6, 2003).

Three years later FPL Farming sued EPS, alleging that wastewater injected into the ground by the EPS facility had migrated into the deep subsurface of FPL’s tract, possibly contaminating its groundwater.  2015 Tex. LEXIS 113, at *5.  The trial court entered a take-nothing judgment against FPL Farming because the jury determined that FPL did not satisfy its burden of proof.  Id.

Following a series of appeals on other procedural issues, the case was remanded to the Ninth District Court of Appeals which reversed the trial court’s take-nothing judgment and held, inter alia, that:  (1) Texas recognizes a common law trespass cause of action for deep subsurface water migration; and (2) consent is an affirmative defense to trespass . . . Id., at *6-7.  EPS then petitioned the Supreme Court of Texas for review, and the Supreme Court granted its petition.  Id., at *7.

Upon review, the Supreme Court first considered whether lack of consent is an essential element of common law trespass (on which the plaintiff bears the burden of proof), or whether consent is an affirmative defense (on which the defendant bears the burden of proof), a question that it “had not previously squarely addressed.”  Id.  After a discussion of historical precedent, the Supreme Court stated that “at its core, a trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters – or causes something to enter – another’s property.”  2015 Tex. LEXIS 113, at *18 (emphasis in original); Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011).   The Supreme Court further explained that “every unauthorized entry upon the land of another is a trespass.”  2015 Tex. LEXIS 113 at 16 (emphasis added); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d, 819, 827 (Tex. 1997).  Finally, the Court reaffirmed that a claim for common law trespass encompasses three elements: “(1) entry (2) onto the property of another (3) without the property owner’s consent or authorization.”  2015 Tex. LEXIS 113, at *10.

Therefore, the Supreme Court held that at the trial level, the jury was properly instructed that “trespass means an entry on the property of another without having consent of the owner.”  Id., at *29.  The Supreme Court also held that FPL Farming failed to establish conclusively that that it did not consent to EPS’s alleged trespass.  Id.  The Supreme Court reversed the judgment of the Court of Appeals and reinstated the trial court’s judgment that FPL Farming take nothing.  Further, the Supreme Court noted that any error in submitting the question of trespass for subsurface wastewater migration was harmless because the jury charge was correct and the jury found no liability for subsurface trespass.  Id., at *29.  Therefore, the Supreme Court concluded that there is no need to address whether trespass for subsurface water migration is a viable cause of action in Texas.  Id.

Envtl. Processing Sys., L.C. v. FPL Farming Ltd. is significant because it establishes the bright line rule that lack of consent is an essential element of common law trespass and not an affirmative defense.  However, because the Texas Supreme Court declined to address whether Texas law recognizes a trespass cause of action for deep subsurface wastewater migration, the question remains as to whether subsurface trepass is a viable cause of action in Texas.  Nonetheless, as indicated in the lower court proceedings in this case, it appears that a trespass cause of action for deep subsurface wastewater migration, or other potentially other types of subsurface trespass including trespasses arising from oil and gas drilling operations, may be determined to be a viable cause of action in Texas.