Texas property owners can post their land against trespassers. But what do you do when the interloper is toxic liquid spreading far beneath the surface of your land from someone else’s well and possibly poisoning your water supplies?
The Texas Supreme Court was to hear arguments on that question this week, in a case that industry groups say could significantly threaten oil and gas drilling in Texas by limiting the use of injection wells to dispose of millions of gallons of waste products. Critics say it’s about time for Texas courts to set better limits on drillers’ ability to affect others’ property rights and values and to threaten the state’s underground water supplies.
The party asking for relief in this case is a rice farming operation in southeast Texas. According to filings by FPL Farming Ltd, liquids from an injection well on nearby property have contaminated a saltwater aquifer under the farm — an aquifer that isn’t being used for drinking water but conceivably could be, with desalinization. The well in question doesn’t handle toxic drilling wastes — but a ruling could apply to those kinds of wells. And it could pit drillers against ranchers, farmers, and other big landholders in shale drilling regions around the state.
If the state’s highest civil court accepts the theory that trespass laws apply to the migration of liquids injected far below the surface, the ruling “would be the first of its kind in the United States,” said Cory Pomeroy, vice president and general counsel for the Texas Oil and Gas Association.
The oil and gas industry “is dependent on disposal wells to safely manage the wastewater that results from oil and gas production,” he said. “This is an important case.”
In a friend-of-the-court brief, the trade group said that the more than 50,000 injection wells permitted by the state are “critical to the production of oil and gas.” The brief said that, when it comes to oil and gas production in Texas, “subsurface property rights … are not absolute.” The brief also noted that after the wastewater is injected deep into the earth, horizontal migration of those liquids — perhaps for dozens of square miles — is inevitable and impossible for well operators to predict or control.
“It’s interesting that they would even say that in a legal brief,” said Gary Hogan, president of the North Central Texas Communities Alliance, a frequent critic of gas drilling operations.
Jim Popp, a Wise County landowner whose unsuccessful fight against a proposed injection well made Texas case law several years ago, said he’s not surprised that the industry would seek to avoid responsibility for encroaching on other landowners’ property and for harm potentially caused by the wastewater wells.
“The industry will do anything to keep injection wells in Texas,” Popp said. Some cities and some areas in the Marcellus shale region, in the northeastern United States, don’t allow injection wells “and for good reason,” he said. “You’re looking at at least 27 different kinds of toxic waste, including benzene, and you’re spreading that out, and people know it’s under their property.” Injection well leakage has migrated to the surface in some instances already, he said, and killed trees and caused other kinds of damage.
The FPL case, against a disposal well operator called Environmental Processing Systems, has already been to the Texas Supreme Court once. In that round, the Supreme Court disagreed with lower court findings that the existence of a state permit for the well shielded the operator from liability and sent the case back for reconsideration.
Pomeroy said the process of proving how liquids move underground is difficult and highly error-prone. But having such proof “is an absolutely crucial element in settling this type of issue.”
In a story in the Dallas Business Journal, staff writer Nicholas Sakelaris quoted Dallas attorney Holt Foster as saying the FPL case could have a dramatic effect on property rights. “This could open the barn door, and third parties could start suing their neighbors,” Foster said.
That would be fine with Popp. He noted that the drilling industry could hugely reduce its dependence on disposal wells if companies made more use of desalinization techniques such as those used by Devon Energy. Devon, he said, reuses 80 to 90 percent of its water, “so they don’t need millions more gallons” every time the company uses hydraulic fracturing on a new well. “Of course, the process costs them a lot more money,” he said.
Critics of the disposal wells, which inject drilling waste fluids at high pressure deep underground, say there are many reasons that such wells should be better regulated and more sparingly used. One is the fear that, indeed, the injection process is not nearly so predictable and safe as drillers have painted it and that the toxic fluids could escape and foul underground aquifers — an increasingly critical problem as Texas’ water supplies come under more pressure from population growth and climate change.
Another problem are the earthquakes that in the last few years have begun to plague parts of Texas and other states with lots of drilling activity. Researchers have found a strong connection between the quakes and injection wells, so much so that such wells have been shut down in some areas in other states.
“What they’re injecting is lubricating the [tectonic] plates,” and leading to the quakes, Popp said.
“Let me tell you this,” he said. “I’m a conservative. I’m for drilling here, drilling now. We need this energy. But let’s do it safely, for goodness sakes, for this generation and future generations to come. I have grandchildren. I want them to be able to live safely and drink the water without worrying.”