The Texas Supreme Court heard oral arguments this week on whether an injection well company trespassed onto an East Texas rice farmers land when they deposited fracking waste water into a nearby property.
FPL Framing, Ltd., a rice farming company based in East Texas, has filed suit against Environmental Processing Systems, a company that disposes of the backwash that is a result of natural gas hydraulic fracking, and in this case is accused of migrating into a farm’s water supply on an adjacent property.
Attorney Craig Enoch, who represent EPS, said the wastewater was injected on a separate property 8,000 feet below the surface.
"If someone were to come into your garage and start storing their material in your garage, without your permission, would that be a trespass," asked Justice Debra Lehrmann.
"If I am producing on my property that creates smoke and the vapor wafts on to your property, we don’t call that trespass, we call that nuisance," Enoch replied.
Attorney Claudia Wilson Frost, who represents FPL, said the proof in this case comes from the state’s records about EPS.
"Part of the permitting process requires a permitee like EPS to depict what the radius will be of the migration or push of the materials out into the surrounding acreage," she said.
"It's all a guess though, made by scientific formulas, but a guess," said Justice Paul Green. "We don't know where the wastewater goes when it's 8,000 feet below the surface."
The Texas Supreme Court is not expected to come to a decision until this summer, in the height of the rice farming harvest.
