Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann
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 stateís 1996 wastewater-injection permits to Environmental Processing Systems on land near FPLís. 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 FPLís claims and the court of appeals affirmed.
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Texas Supreme Court advisory
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