09-1010 FPL Farming Ltd. v. Environmental Processing Systems L.C. from Liberty County and the Ninth District Court of Appeals, Beaumont For petitioner: Ms. Claudia Wilson Frost, Houston For respondents: Mr. Richard G. Baker, Liberty In this subsurface-trespass case, the principal issues are (1) whether a permit-holder with authority to inject wastewater underground can be immune because of the state-issued permit from liability when the wastewater intrudes beneath neighboring property and, if so, (2) whether that constitutes an unconstitutional taking. A turning-point issue is whether subsurface water migration can be actionable as a trespass. FPL Farming, owner of two tracts in Liberty County, initially opposed the state's 1996 wastewater-injection permits to Environmental Processing Systems on land near FPL's. FPL Farming settled with Environmental Processing, but sued when the state (then the Texas Natural Resource Conservation Commission) granted an amendment in 1999 to increase the allowed injection rate. FPL Farming alleged the wastewater migrated under its land. A jury rejected FPL's claims and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The principal issues are (1) whether a trespass action exists in Texas for deep subsurface-wastewater migration; (2) whether lack of consent must be proven as a trespass element or whether it's an affirmative defense; and (3) whether the trial court should have directed a verdict on the consent issue because the plaintiff, FPL Farming, could not have consented to a trespass that had not occurred. In this case FPL Farming sued Environmental Processing, a wastewater injection-well operator on adjacent land, over the projected wastewater migration 8,000 feet below FPL's rice farm. FPL sought injunctive relief and damages for trespass, negligence and unjust enrichment. Before its suit, FPL lost its administrative challenge to Environmental Processing's amended permit to allow pumping more wastewater underground. The administrative-law judge ruled that FPL's farming would not be impaired. A jury decided in Environmental Processing's favor. The appeals court reversed, holding in part that FPL could recover for common-law trespass.