Texas Supreme Court considers wastewater cases

January 16, 2014

Earlier this month, the Texas Supreme Court heard arguments in a dispute between an oil and gas drilling company and a nearby rice farm. The issue, which has arisen many times in various states since the beginning of the recent oil and gas drilling boom, is that of pollution.

A New York Times article that summarized the case before it went before the state's highest court wrote that the owner of the rice farm in Liberty County claims that wastewater from these wells containing the chemical acetone has reached a saltwater aquifer underneath the land, preventing it from being desalinated for drinking purposes. The owner asked the court to determine how far below ground property lines extend, and whether this contamination counts as trespassing.

The article also notes that, in Texas, oil drilling and property rights are both important issues.

"This is the classic battle between the two quintessential values that are in direct conflict with each other," Matthew Festa, a professor at the South Texas College of Law, told the news source. "On a lot of different levels, this case could make some new law."

For landowners, oil and gas interests have often posed a problem

This case is hardly the first time that an energy company has battled a Texas landowner in court over property rights. The Times article cited one such case that occurred in 2008. At the time, a group of mineral owners sued Coastal Oil & Gas for trespassing, claiming that the company had taken some gas that was beneath their property while drilling its well. In this case, the court sided with Coastal Oil & Gas.

As pointed out by a recent article on NPR's State Impact, in drilling set ups like this one, "some drainage is virtually unavoidable."

Some property owners would argue that the same could be said for contamination. After all, as State Impact points out, fracking quite literally involves the fracturing of rock underground in order to release oil and gas. Sometimes, it can be difficult to predict just how far a particular fracture will penetrate, and whether it will extend beneath someone else's property.

High court case crucial to settling future disputes

With this in mind, it is easy to see why the case before the Texas Supreme Court is so important. Depending on where the justices draw a property owner's line underground, the oil and gas driller may be required to pay damages or fund soil and groundwater remediation. Such a decision may force other companies in the industry to reconsider the way they set up their operations, due to the risk of neighboring landowners taking similar legal action.

If this ends up being the case, then energy companies will almost certainly want to work with environmental consultants to ensure that they are using best practices and in compliance with pertinent regulations. This is far preferable to waiting for a major environmental liability to develop.