OPINION
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FPL Farming Ltd. v. Environmental Processing Systems, L.C. (Tex. 2011)
(Opinion by Justice Wainwright)
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FULL TEXT OF OPINION [ coming soon ]
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OPINION OF THE COURT OF APPEALS BELOW: Court of Appeals
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Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
FPL Farming Ltd. v. Environmental Processing Systems, L.C.,
No. 09-1010 (Tex. Aug. 26, 2011)(Opinion by Justice Dale Wainwright)(liability issues re: waste water injection
well)
FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.;
from Liberty County; 9th district (09-08-00083-CV, 305 SW3d 739, 10-29-09)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright delivered the opinion of the Court. [pdf]
In this case we consider whether a regulatory permit to drill an injection well absolves the
holder from civil tort liability for conduct authorized by the permit. Environmental Processing
Systems, L.C. (EPS) obtained permits from the Texas Natural Resource Conservation Commission
(now the Texas Commission on Environmental Quality) to construct and operate two deep
wastewater injection wells on a tract next to land FPL Farming Ltd. (FPL) owns in Liberty County.
FPL sued EPS for, among other things, tort damages for physical trespass based on alleged
subsurface migration of water injected in the permitted well. Specifically, FPL alleged that the
injected wastewater likely migrated onto its property and contaminated its water supply. After the
jury failed to find a trespass, FPL appealed. Among other issues, FPL contended that it was entitled
to a directed verdict on a consent defense, the allocation of the burden of proof in the jury charge
was erroneous, and factually sufficient evidence supported its trespass claim. The court of appeals
did not address the merits of the trespass claim or the jury charge but held FPL could not recover
in tort for trespass damages because the wells were authorized by the permit EPS secured from the
Texas Commission on Environmental Quality (TCEQ). The Injection Well Act provides that
holders of wastewater injection well permits issued by the TCEQ are not immune from civil liability
and our previous case law has not held that such permit holders are immune from tort liability. We
therefore reverse the judgment of the court of appeals and remand for consideration of issues related
to the trespass claim.
CONCLUSION
The language of the Injection Well Act and the portions of the Texas Administrative Code
governing the TCEQ do not shield permit holders from civil tort liability that may result from
actions governed by the permit. This is consistent with our common law rule that the mere fact that
an administrative agency issues a permit to undertake an activity does not shield the permittee from
third party tort liability stemming from consequences of the permitted activity. Accordingly, the
court of appeals erred in determining that because the TCEQ permitted EPS’ injection wells, there
was no trespass. We do not decide today whether subsurface wastewater migration can constitute
a trespass, or whether it did so in this case. We remand to the court of appeals for determination of
the issues originally presented by FPL at the court of appeals, including whether FPL was entitled
14to a directed verdict on the issue of its consent, whether the burden of proof on consent was
erroneously shifted to FPL in the jury charge, and whether the jury charge should have included an
instruction that injury is not a necessary element of trespass. Accordingly, we reverse the court of
appeals’ judgment and remand to that court for further proceedings consistent with this opinion.
Link to e-briefs: FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.