How Far Underground Do Property Rights Extend?

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How Far Underground Do Property Rights Extend?

Last month, the Texas Tribune and the New York Times reported on an interesting case regarding migration of wastewater from injection wells and the notion of “underground trespassing.”  Arguments in front of Texas’ highest civil court began on January 7, 2014.  The outcome may have implications for the oil and gas industries.

The court will determine if migration of wastewater from an industrial injection well to a non-potable aquifer that underlies an adjacent farm violates property rights of the owners of the farm.  The court will answer the question: How far underground do property rights extend?

The owners of the farm contend that migration of wastewater to the aquifer is a form of trespassing. Therefore, they argue that they should be compensated for any contamination that results from migration of wastewater from the nearby injection wells to the aquifer in question.  Though the aquifer is a salt-water aquifer, the farmers believe that it has value because desalination technologies could eventually make it a viable source of irrigation or potable water.  They believe that liquid acetone, from wastewater disposed of in the nearby injection wells, has contaminated the aquifer underlying their property.

The operator of the injection well believes differently.  According to the New York Times, “The well operator and its supporters…say the waste will make the groundwater no more polluted than it is naturally. And they say it is a moot point because recognizing a subsurface trespassing argument is nearly unprecedented.”

According to the Texas Oil and Gas Association, the outcome of this case is significant because “the ability to produce oil and gas is inextricably tied to the availability of injection wells.” The association argues that “a new common law cause of action that threatens operation of injection wells likely threatens oil and gas production.”

On the other hand, the assistant general counsel for the Farm Bureau feels that this is a case of “taking without compensation” and that the farm “own[s] the property down to the center of the earth.”

The original article, “Wastewater Case Raises the Concept of Underground Trespassing,” is available here.

An updated version of the original article is available here. 

More information about the case is available on the website of the Supreme Court of Texas.

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