The Texas Supreme Court will hear arguments January 7 about wastewater from injection wells in Liberty County that a nearby rice farm says migrated into a saltwater aquifer below its land. “It calls the migration trespassing, for which it should be compensated,” a Fox News report said.
An issue for the court is an ancient legal question — how far below the earth’s surface do property lines extend?
“This is the classic battle between the two quintessential values that are in direct conflict with each other,” Matthew J. Festa, a professor at the South Texas College of Law, told Fox News. “On a lot of different levels, this case could make some new law.”
Despite the long history in Texas of the oil and gas industry and prior questions about land and mineral rights before the court, this is the first time it will consider an underground trespassing claim.
The well in question is classified as Class I and used for nonhazardous industrial waste, Fox said. It is not one of the 50,000 Class II waste wells that drillers typically use. But lower courts’ opinions have drawn no distinction between the wells, stirring concerns that a ruling in FPL Farming’s favor would harm production.
“Because the ability to produce oil and gas is inextricably tied to the availability of injection wells,” the Texas Oil and Gas Association said in a brief to the court, “a new common law cause of action that threatens operation of injection wells likely threatens oil and gas production.”
Since 1997, Environmental Processing Services has injected more than 100 gallons wastewater into the injection well about 400 feet from FPL Farming’s land. An expert will testify that the waste water ”probably traveled across the property lines, basing those conclusions on a formula widely used by state and federal regulators,” Fox said.
The rice farm thinks the waste water with its flammable liquid acetone will contaminate its groundwater and lower the usefulness and value of its property.
In its brief, the Texas Oil and Gas Association said it is “impossible” for a well operator to “predict or control the precise path of migration within a formation that could span dozens of square miles,” Fox News said.
Under an ancient common law idea called the ad coleum doctrine, land ownership extends from “the center of the earth to the sky above.” Modern legal trends have eroded the doctrine to adapt to air-right for aviation, for example.
But legal precedent hasn’t established clear concepts for all aspects of underground property rights.“We think they own t
he property down to the center of the earth,” Regan Beck told Fox News. He’s the general counsel for the Texas Farm Bureau, which may file a brief in support of the rice farm.