From K.B. Battaglini of GT Houston:
The Texas Supreme Court, in resolving a conflict among Texas Courts of Appeal over whether state-issued permits immunize permit holders from civil liability, has held in FPL Farming Ltd. v. Environmental Processing Systems LC, No. 09-1010 (Tex. Sup. Ct. Aug. 26, 2011), that wastewater injection well permits issued by the Texas Commission on Environmental Quality (TCEQ) do not shield holders from civil liability.
Environmental Processing Systems (EPS) obtained a permit to drill and operate a wastewater injection well. FPL Farming sued EPS for trespass and negligence and seeking a permanent injunction, alleging that a waste plume was projected to migrate into the deep subsurface of the formation underlying FPL’s property. A jury failed to find that a trespass had occurred, and a trial judge entered a take-nothing judgment against FPL. A Texas Court of Appeals considered the threshold question of whether FPL may pursue a trespass claim when TCEQ approved a permit allowing EPS to inject wastewater and the information before the TCEQ showed that EPS’s waste plume was projected to migrate into the deep subsurface of the formation underlying FPL’s property. The Court of Appeals concluded that EPS was shielded from civil tort liability, reasoning that 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. The Texas Supreme Court disagreed, finding the reasoning of the Court of Appeals to be inconsistent with the common law rule of the legal effect of an agency’s permitting process, because a permit is a "negative pronouncement that grants no affirmative rights to a permittee" and that the Texas Injection Well Act (the policy and purpose of which it to maintain the quality of fresh water in the state) does not preempt civil actions. However, the Texas Supreme Court cautioned that "we do not decide today whether subsurface wastewater migration can constitute a trespass or whether it did so in this case."