Alia Heintz, ‘What’s the Harm in a Subsurface Trespass?’

Throughout modern history, the issue of subsurface trespass plagues the oil and gas industry in many contexts. The media continues to sensationalize the negative, harmful effects of hydraulic fracturing in society ranging from earthquakes to flaming tap water. Many emerging issues associated with hydraulic fracturing allegedly result from the wastewater injections used for disposal. However, case law does not provide an express rule regarding the trespass liability associated with the subsurface migration of these wastewater injections onto adjoining tracts. This Comment examines the interplay between legal precedent and policy concerns in the Texas Supreme Court’s decision to decline ruling on the issue of trespass liability of wastewater injections in Environmental Processing Systems, LC v FPL Farming Ltd and whether Oklahoma should resolve this specific issue. Texas case law provides many rulings on subsurface trespass in different instances, most alluding to a lack of harm as crucial to the decisions. Yet, the courts have not specifically answered whether a subsurface trespass exists in the case of wastewater injections. There is a growing trend among courts to contemplate harm as an important factor in determining the existence of a subsurface trespass, but the meaning of ‘harm’ varies and is largely undefined. This Comment concludes that Oklahoma should broadly construe the meaning of harm and assess whether trespass liability attaches in the case of subsurface migration of wastewater onto adjoining tracts.

Alia Y Heintz, ‘What’s the Harm in a Subsurface Trespass?’, 51 Tulsa Law Review 777 (2015).

First posted 2016-06-10 10:55:08

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