FPL Farming Ltd. v. Environmental Processing Systems, L.C., 383 S.W.3d 274

EPS operates a non-hazardous waste disposal facility in Liberty County, Texas, under permit WDE-316 issued by the TNRCC (now TCEQ).
FPL Farming Ltd. owns tracts adjacent to EPS’s injection well and alleged a subsurface waste plume migrated beneath FPL’s property, causing injury to briny water in place.
A four-day trial ended with the jury finding no trespass, negligence, or unjust enrichment, and the trial court entered judgment for EPS.
On initial appeal, this court affirmed, the Texas Supreme Court remanded to address trespass; the Texas Supreme Court held a permit holder is not shielded from private tort liability and directed consideration of trespass issues.
On remand, EPS argued lack of standing and that trespass could occur beneath the surface; the court analyzed subsurface ownership and FPL’s rights to the briny water.
The court concluded FPL has a possessory interest in subsurface water and the right to sue for trespass, and determined the trial court improperly allocated the burden of proving consent on FPL.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who bears the burden to prove consent?	FPL contends EPS must prove consent as an affirmative defense.	EPS argues consent is an element for FPL to prove, or consent can be implied from conduct.	Burden on EPS; trial court error; remand for new trial.
Did FPL have standing to sue for subsurface trespass?	FPL has surface and subsurface rights to water below its tracts; deeds show possessory interest.	Standing challenges untethered to trespass theory? (summary) EPS contends lack of standing.	FPL has standing to sue for trespass.
Is there a viable trespass claim for deep subsurface intrusion?	Texas law recognizes subsurface trespass to protect water; evidence supports trespass.	Question whether subsurface trespass applies and whether evidence supports it.	Court recognizes FPL's trespass claim, but remainder remanded due to charge error.
Was the jury instruction on consent improper and harmful?	Instruction misallocated burden to prove lack of consent to FPL.	Instruction correctly stated elements; burden allocation acceptable in context.	Instruction error harmful; reverse and remand.
Were evidentiary rulings affecting consent appropriate?	Excluded documents (escrow and settlement letter) relevant to consent evidence.	Court could exclude as prejudicial or irrelevant.	Court abused discretion by excluding relevant consent evidence; remand.

FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 351 S.W.3d 306 (Tex. 2011) (permit holder may be liable for private torts; remand guidance on trespass)
Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (Tex. 1961) (subsuface injury injunctions; jurisdiction over subsurface invasions)
Hastings Oil Co. v. Tex. Co., 149 Tex. 416, 234 S.W.2d 389 (Tex. 1950) (injunction against deep subsurface production)
Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012) (groundwater ownership and remedies in place)
Robinson v. Robbins Petroleum Corp., Inc., 501 S.W.2d 865 (Tex. 1973) (water beneath surface part of surface estate)
Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex. App.-Eastland 2007) (burden-of-proof in trespass cases discussion)
Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827 (Tex. App.-Dallas 2000) (trespass burden allocation and consent principles)
Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613 (Tex. App.-Corpus Christi 1994) (consent concepts in trespass)