Thomas Kurth in Law360: Texas Case Could Make Drillers Rethink Fracking Disposal

November 26, 2013

A trespassing case taken up by the Texas Supreme Court on Friday asks whether landowners can sue when wastewater from underground injection wells ends up on their land, and the outcome could force energy companies to rethink how they dispose of byproducts from fracking and other power generation activities.

The court is expected to decide whether a cause of action exists in Texas for trespasses that occur deep underground, when water migrates to another tract of land or mingles with a neighboring subsurface pool of water. The case involves a water disposal well permitted by the Texas Commission on Environmental Quality, but could have ramifications for oil and gas drilling, which typically produces fluid byproducts that must be safely stored, and for other underground energy disposal measures like carbon capture and sequestration efforts that inject excess carbon far below the surface...

“It’s going to require more creativity from the industry on the disposition of flowback water from a hydraulic fracturing operation if there [is] this cause of action available,” Thomas Kurth of Haynes and Boone, LLP said.

Kurth says that in the face of a contentious adjacent landowner who wouldn’t be amenable to negotiating compensation for the subsurface trespass, a drilling operator might shy away from using an injection well at all to dispose of fracking fluid “flowback” and could turn to alternate methods of disposal rather than ending up mired in litigation.

Excerpted from Law360, November 26, 2013. To view full article, click here (subscription required).

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