Is Wastewater Migration From Disposal Wells a Trespass? Texas Supreme Court Declines To Answer
In Environmental Processing Systems L.C. v. FPL Farming Ltd., a landowner sued the operator of a neighboring wastewater disposal facility on the theory that deep subsurface wastewater trespassed beneath the landowner’s property. On 6 February 2015, after a series of appeals, the Texas Supreme Court ultimately reversed the court of appeals and reinstated the trial court’s take-nothing judgment against the landowner. The Court held that lack of consent is an element of a trespass cause of action that the landowner failed to prove. In doing so, the Court declined to answer whether deep subsurface wastewater migration is actionable as a common law trespass under Texas law.