RAILROAD COMMISSION OF TEXAS and Pioneer Exploration, Ltd., Petitioners, v. TEXAS CITIZENS FOR A SAFE FUTURE AND CLEAN WATER and James G. Popp, Respondents.
No. 08-0497.
Supreme Court of Texas.
Decided March 11, 2011.
Rehearing Denied May 27, 2011.
336 S.W.3d 619
Argued April 14, 2010.
We understand that the deadline is intended to weed out frivolous health care liability claims early in the proceeding. See Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex.2008) (noting efforts of Legislature “to stem frivolous suits against health care providers“); Am. Transitional Care Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (noting that one purpose of the expert-report requirement is to deter frivolous claims). That purpose would not be sacrificed, however, by calculating the expert report deadline from the date the physician or other health care provider becomes a party to the proceeding through service or appearance. Calculating the deadline from that date would also better fit the statute‘s requirement that the expert report is to be served on “each party or the party‘s attorney.”
* * * * * *
The court of appeals concluded that there was no evidence that section 74.351(a)‘s expert report requirement prevented Stockton from pursuing her claim or that the statute was unconstitutional as applied to her. We agree and affirm the court of appeals’ judgment.
David Frederick, Marisa Perales, Lowerre, Frederick, Perales Allmon & Rockwell, Austin TX, for Texas Citizens for a Safe Future and Clean Water.
David B. Gross, Gross & Nelson, Austin TX, for Pioneer Exploration, Ltd.
Karen L. Watkins, W. Timothy George, McGinnis Lochridge & Kilgore, L.L.P., Austin TX, for Amicus Curiae Texas Oil & Gas Assoc.
Mark A. Mayfield, Gardere Wynne Sewell LLP, Austin TX, for Amicus Curiae Pinnergy.
Patrick Joseph Pearsall, Clark, Thomas & Winters, Austin TX, for Amicus Curiae Texas Pipeline Association.
Edmond R. McCarthy Jr., Jackson Sjober McCarthy & Wilson LLP, for Amicus Curiae TX Water Conservation, et al.
Gabriel Enrique Lopez, Texas Assoc‘n of Realtors, Austin TX, for Amicus Curiae Texas Association of Realtors.
Justice GUZMAN delivered the opinion of the Court, joined by Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, and Justice JOHNSON.
The Texas Water Code requires the Railroad Commission of Texas to weigh the “public interest” in the permitting of proposed oil and gas waste injection wells. In a ruling, the Commission declined to consider traffic-safety factors in its public interest inquiry. We determine whether the Commission‘s interpretation of “public interest” is entitled to judicial deference. Because we conclude the Commission‘s construction of the phrase was reasonable and in accord with the plain language of the statute, we hold the court of appeals erred in not deferring to the Commission‘s interpretation. We therefore reverse the court of appeals’ judgment and render judgment for the petitioners in accordance with the trial court‘s original judgment.
I. Background
The Barnett Shale is a large, prolific oil and gas field lying beneath several counties, including Wise County, in north Texas. As in other shale formations, wells in the Barnett Shale require fracture stimulation in order to produce. Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin. A company fracing a well must dispose of the resulting waste. Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells.1 A company seeking to convert a well to an injec
In granting an injection well permit, the Commission is required to make the following findings:
(1) that the use or installation of the injection well is in the public interest;
(2) that the use or installation of the injection well will not endanger or injure any oil, gas, or other mineral formation;
(3) that, with proper safeguards, both ground and surface fresh water can be adequately protected from pollution; and
(4) that the applicant has made a satisfactory showing of financial responsibility if required by Section 27.073.
Id.
Pioneer Exploration, Ltd. (Pioneer) applied to the Commission for a permit to convert an existing well into an injection well for the disposal of oil and gas waste. But several Wise County residents living near the well—respondents Texas Citizens for a Safe Future and Clean Water and James Popp (collectively, Texas Citizens)—opposed the proposed injection well, necessitating a contested administrative hearing before Commission hearing examiners. At the hearing, Texas Citizens voiced a variety of concerns about the well‘s environmental soundness, but also presented arguments and evidence related to traffic-safety issues. Specifically, Texas Citizens argued that large trucks used to haul waste water to the well would damage nearby roads and pose a threat to area residents who use the roads, and thus would not serve the “public interest” under section 27.051(b)(1).2 Pioneer did not rebut this traffic-safety evidence. Instead, Pioneer essentially argued that the production of natural gas is in the public interest.
The hearing examiners recommended issuing the permit. In the examiners’ findings of fact and conclusions of law, adopted by the Commission in its final order, the examiners found
[u]se of the proposed disposal well is in the public interest because it will provide needed additional disposal capacity and an economical means of disposing of produced salt water from completed wells in the rapidly expanding Barnett Shale Field Area, thereby increasing ultimate recovery from these wells and preventing waste. The safe and proper disposal of produced saltwater serves the public interest.
. . .
The use of the proposed disposal well is in the public interest pursuant to Sec[tion] 27.051 of the Texas Water Code.
In the proposal for decision, the examiners additionally concluded the “production of hydrocarbons for use by the people of Texas and industry serves the public interest.” In addressing Texas Citizens’ traffic-safety evidence, the examiners stated the Commission “does not have jurisdiction
The Commission adopted the examiners’ findings of fact and conclusions of law and approved Pioneer‘s application. Texas Citizens appealed to the trial court, which affirmed the Commission‘s order. The court of appeals, however, reversed, holding that the Commission abused its discretion in interpreting the “public interest” inquiry too narrowly by solely focusing on the proposed well‘s effect on the conservation of natural resources.4 See 254 S.W.3d 492, 503. The court of appeals remanded the case to the Commission to “reconsider its public interest determination, using a broader definition of ‘the public interest,’ which includes public-safety concerns where evidence of such concerns has been presented.” Id. The Commission moved for rehearing en banc, which the court of appeals denied in a per curiam opinion with two justices writing separately, concurring in the denial. See id. at 503–07. The Commission and Pioneer petitioned this Court for review of the court of appeals’ holding on the “public interest” issue.
II. Standard of Review
The parties disagree on the contours of the precise issue in dispute, which is a matter we initially address. The Commission contends this case fundamentally concerns the need for court deference to an agency‘s interpretation of what it argues is an ambiguous statute. If an agency‘s construction of an ambiguous statute it is charged with administering is reasonable, the Commission urges, it is improper for a court to overturn that interpretation.5 Texas Citizens counters that the core issue is not an agency‘s interpretation of a statutory term or even the proper definition of “public interest,” but rather whether that phrase may include factors beyond the production of oil and gas, requiring the Commission to weigh all evidence offered in support of or against the public interest finding.
We agree with the Commission that this case turns on a matter of statutory construction—specifically, the definition of the term “public interest“—and therefore the proper level of deference a court must grant the Commission‘s interpretation of that term. As Texas Citizens asserts, the Commission‘s order does not expressly define the term “public interest.” Rather, the order—by way of adopting the examiners’ findings of fact and conclusions of law—states that the well is in the public interest because of its positive effect on increased productivity from wells in the Barnett Shale field. But although the
The Utilities Code generally requires a court to review a decision of the Commission under a substantial evidence standard. See
The gravamen of this dispute, however, is a governmental agency‘s construction of a statute it is charged with administering. The construction of a statute is a question of law we review de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). We have long held that an agency‘s interpretation of a statute it is charged with enforcing is entitled to “serious consideration,” so long as the construction is reasonable and does not conflict with the statute‘s language. We have stated this principle in differing ways, but our opinions consistently state that we should grant an administrative agency‘s interpretation of a statute it is charged with enforcing some deference.6
We have never expressly adopted the Chevron or Skidmore doctrines for our consideration of a state agency‘s construction of a statute, but we agree with the Commission that the analysis in which we engage is similar. In our “serious consideration” inquiry, we will generally uphold an agency‘s interpretation of a statute it is charged by the Legislature with enforcing, ” ‘so long as the construction is reasonable and does not contradict the plain language of the statute.’ ” First Am. Title Ins. Co., 258 S.W.3d at 632 (quoting Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993)). As we observed in Fiess, this deference is tempered by several considerations:
It is true that courts give some deference to an agency regulation containing a reasonable interpretation of an ambiguous statute. But there are several qualifiers in that statement. First, it applies to formal opinions adopted after formal proceedings, not isolated comments during a hearing or opinions [in a court brief]. Second, the language at issue must be ambiguous; an agency‘s opinion cannot change plain language. Third, the agency‘s construction must be reasonable; alternative unreasonable constructions do not make a policy ambiguous.
Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747–48 (Tex.2006).
Here, the examiners’ opinion, and the Commission‘s final order, were formally adopted after an adjudication. Accordingly, we will review the Commission‘s interpretation of “public interest” and uphold it if it is reasonable and in accord with the plain language of the statute. See First Am. Title Ins. Co., 258 S.W.3d at 632.7
Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273 (1944) (observing that courts will ordinarily adopt and uphold a construction of a statute by the executive officer or department charged with its administration, if the statute is ambiguous and the construction reasonable).
A. Injection Well Act
In 1961, the Legislature enacted the Injection Well Act (the Act), which governs the permitting process for all injection wells in the state.8 The Act—currently codified in Chapter 27 of the Water Code—distinguishes between two types of injection wells, those used to dispose of “industrial and municipal waste,” and those used to dispose of “oil and gas waste.”
The distinction between the jurisdictions of these two agencies is important because the statute governing the issuance of permits differs as to factors each agency must consider in granting a permit. Both stat
The Act further requires the TCEQ to consider specific criteria including the compliance history of the applicant, whether an alternative to the well is reasonably available, and, in some circumstances, whether the applicant will maintain sufficient insurance in its public interest inquiry, though the Act specifically states the TCEQ is not limited to consideration of these factors. Id.
The Act declares a purpose of protecting freshwater supplies in this state, as provided in its statement of policy and purpose:
It is the policy of this state and the purpose of this chapter to maintain the quality of fresh water in the state to the extent consistent with the public health and welfare and the operation of existing industries, taking into consideration the economic development of the state, to prevent underground injection that may pollute fresh water, and to require the use of all reasonable methods to implement this policy.
Id.
Beyond this statement of purpose, the Act, as a whole, details procedures related to the protection of natural resources, as well as the technical processes involved, in the permitting of an injection well. The chapter prescribes no requirements for the Commission to engage in any sort of process or deliberation involving matters that do not involve oil and gas production and the protection of natural resources.
With this statutory framework in mind, we turn to the Commission‘s construction of “public interest” to determine if it is reasonable and in harmony with the language of the statute.
B. The Commission‘s Interpretation of “Public Interest”
Texas Citizens argues, and the court of appeals held, that “public interest” is a broad term, intended by the Legislature to encompass any number of subsidiary issues that might impact the public interest. Texas Citizens asserts two primary arguments in favor of its interpretation: (1) the term is inherently an amorphous, unlimited term, encompassing all possible factors that might affect the public; and (2) since other factors in section 27.051(b) require the Commission to consider matters pertaining to the production of oil and gas and the prevention of fresh water pollution, it must follow that the “public interest” factor is intended to encompass something else.
It is precisely when a statutory term is subject to multiple understandings that we should defer to an agency‘s reasonable interpretation. See Fiess, 202 S.W.3d at 747–48. Because we only require an agency‘s interpretation of a statute it is charged with administering to be reasonable and in accord with the statute‘s plain language, we need not consider whether the Commission‘s construction is the only—or the best—interpretation in order to warrant our deference. In determining whether the Commission‘s interpretation is reasonable, we begin with the language in the statute itself.
1. Statutory Scheme
The term “public interest” in section 27.051(b)(1) is undefined. We ordinarily construe a statute so as to give effect to the Legislature‘s intent as expressed in its plain language. Duenez, 237 S.W.3d at 683. “If the statute is clear and unambiguous, we must apply its words according to their common meaning.” First Am. Title Ins. Co., 258 S.W.3d at 631 (quoting State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006)).
As discussed above, the phrase “public interest” is anything but clear and unambiguous. There are several factors, however, lending support to the Commission‘s determination that its consideration of the public interest is intended to be a narrow one precluding consideration of traffic-safety concerns.
First, the Legislature‘s addition of a traffic-related inquiry to the TCEQ‘s required findings—amended more than twenty-five years after the Act was initially enacted—weighs in favor of the Commission‘s interpretation. We generally avoid construing individual provisions of a statute in isolation from the statute as a whole. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). We therefore “read the statute as a whole and interpret it to give effect to every part.” Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998) (per curiam)). When the Legislature uses a word or phrase in one portion of a statute but excludes it from another, the term should not be implied where it has been excluded. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995).12 Had the Legislature intended for the Commission and the TCEQ to entertain traffic-related evidence in their public interest inquiries, it would not have needed to amend the statute to expressly require the TCEQ to consider a well‘s impact on traffic in certain situations. See Acker v. Tex. Water Comm‘n, 790 S.W.2d 299, 301 (Tex.1990) (“A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.“); see also Leland v. Brandal, 257 S.W.3d 204, 208 (Tex.2008).13
Third, the Act‘s statement of purpose expressly declares the purpose of the Act is to “maintain the quality of fresh water in the state to the extent consistent with the public health and welfare and the operation of existing industries.”
Finally, in the portions of the Act where the Legislature intends for the TCEQ or the Commission to evaluate a particular factor in considering the public interest, it says so. The Legislature requires the TCEQ to examine specific factors in its public interest inquiry. See id.
When, as here, a statutory scheme is subject to multiple interpretations, we must uphold the enforcing agency‘s construction if it is reasonable and in harmony with the statute. See First Am. Title Ins. Co., 258 S.W.3d at 632. As the Supreme Court has explained, governmental agencies have a “unique understanding” of the statutes they administer. Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1201, 173 L.Ed.2d 51 (2009) (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). In a complex regulatory scheme like the Act and with a phrase as amorphous as “public interest,” this deference is particularly important. See Pub. Util. Comm‘n of Tex. v. Tex. Tel. Ass‘n, 163 S.W.3d 204, 213 (Tex.App.-Austin 2005, no pet.) (“Public interest determinations are dependent upon the special knowledge and expertise of the [Public Utility] Commission.“). Under the plain terms of the Act, we conclude the Commission‘s construction of “public interest” as a narrow term that does not include traffic-safety considerations is reasonable and in alignment with the statute‘s meaning.
2. The Commission‘s Area of Expertise
Texas Citizens argues that we should afford no deference to an agency‘s interpretation of a statute that does not lie within its administrative expertise or pertain to a nontechnical issue of law. See Rylander v. Fisher Controls Int‘l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.). Texas Citizens further contends that requiring the Commission to consider traffic-safety evidence in its public interest evaluation does not impose on it a duty to “regulate truck traffic” or otherwise evaluate matters beyond its expertise, but rather to simply consider whether traffic-safety concerns might cut against the propriety of the proposed well. The Commission could, Texas Citizens argues, limit the amount of waste the injection well can accept or regulate hours of operation, thus curtailing potential truck traffic, without having to regulate or make policy decisions impacting the state‘s roads. The Commission counters that its statutory directive is to regulate matters related to oil and gas production, not traffic concerns, and that it does not have the expertise or jurisdiction to consider these sorts of public-safety issues.
As an initial matter, the breadth of the term “public interest” is a question of law
The Commission has long been the agency charged with regulating matters related to oil and gas production, and is given broad discretion in its administration of oil and gas laws. See
As the Commission argues, nothing in any of the Commission‘s enabling acts grants the Commission authority over matters related to traffic safety. Rather, each of these statutory provisions make clear that the Commission is the agency charged with administering laws related to oil and gas production. See R.R. Comm‘n v. Sterling Oil & Ref. Co., 147 Tex. 547, 218 S.W.2d 415, 418 (1949) (“The Legislature realized the great value of oil and gas and the importance of the task and duty placed on the Railroad Commission to conserve same for the use of the public, and by many provisions of the statutes full power is given the Railroad Commission to prevent the waste of oil and gas.“). Further, it is “utterly impossible for the Legislature to meet the demands of every detail in the enactment of laws relating to the production of oil and gas.... The Legislature... has authorized the Railroad Commission to handle the details relating to the preservation and conservation of the natural resources of the State.” Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 964 (1945). The Commission must have discretion in determining the minutiae of its statutory mandates.
Here, Texas Citizens raised arguments concerning the impact of large trucks on dirt roads, inadequate road width to han
The Commission‘s purpose is to “do all things necessary for the conservation of oil and gas and prevention of waste of oil and gas.”
3. Commission Practice in Weighing the “Public Interest”
The Commission finally argues that in the half-century since the Legislature first promulgated the requirement that it weigh the public interest in evaluating an injection well permit, it has never considered traffic-safety concerns. The Commission urges that its long-standing construction of the term “public interest” is especially entitled to judicial deference. Citing an Amarillo Court of Appeals’ opinion, Texas Citizens counters that, at least on one occasion, the Commission did, in fact, consider traffic-safety evidence. The Amarillo Court of Appeals’ decision, however, does not support Texas Citizens’ assertion. In that case, as in the instant dispute, property owners protested a proposed injection well in a contested hearing before the Commission, arguing that the well would not comport with the public interest because of public-safety concerns. Berkley v. R.R. Comm‘n of Tex., 282 S.W.3d 240, 244 (Tex.App.-Amarillo 2009, no pet.). Following the Austin Court of Appeals’ holding in the instant case, the Amarillo Court of Appeals explained that safety concerns “are indicia that should be considered by the Commission when assessing public interests.” Id. In Berkley, however, there is no indication the Commission con
We agree with the Commission that an agency‘s long-standing construction of a statute, especially in light of subsequent legislative amendments, is particularly worthy of our deference. See Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 273 (1944) (explaining that an agency‘s construction of a statute it is charged with enforcing is “worthy of serious consideration as an aid to interpretation, particularly where such construction has been sanctioned by long acquiescence“) (citations omitted); see also Pub. Util. Comm‘n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 324 (Tex.2001).18 The Commission has declined to consider public-safety evidence in its public interest analysis for almost fifty years, and Texas Citizens provides no authority to the contrary. Had the Legislature disagreed with the Commission‘s construction of “public interest,” it could have amended the Act to require the Commission to take a broader view of the term. See Stanford, 181 S.W.2d at 273–74. We will not judicially amend the Act in the manner Texas Citizens proposes.
IV. Conclusion
The court of appeals failed to grant deference to the Commission‘s interpretation of “public interest” in section 27.051(b)(1) of the Water Code and instead held the Commission abused its discretion in its construction of the statute. Because we conclude the Commission‘s interpretation of the phrase “public interest” is reasonable and in accord with the plain meaning of the statute, we hold the court of appeals erred in refusing to defer to the Commission‘s construction of the term.
Accordingly, we reverse the court of appeals’ judgment and render judgment for the Commission and Pioneer in accordance with the trial court‘s original judgment.
Chief Justice JEFFERSON delivered an opinion concurring in the judgment, joined by Justice WILLETT and Justice LEHRMANN.
Chief Justice JEFFERSON, joined by Justice WILLETT and Justice LEHRMANN, concurring.
I concur in the Court‘s judgment, but I write separately because the statute at issue in this case unambiguously precludes the Railroad Commission (“Commission“) from considering traffic safety factors as part of its public interest inquiry in the permitting of oil and gas waste injection wells.
As the Court and the parties attest, 336 S.W.3d at 627, “public interest” is a broad term, the scope of which is difficult to determine with precision. But the fact that a term may admit of different meanings, and may be ambiguous as to some conceivable set of facts, does not mean that it is ambiguous as to every proposed reading. The potential breadth of a statutory term does not prevent us from holding that a party‘s proposed construction is unambiguously precluded. See 2A NORMAN J.
The Commission relies principally on Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), in urging us to defer to its interpretation of the statute. While we frequently defer to administrative agencies’ statutory interpretations, we do so principally when the relevant statute is ambiguous. See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex.2006) (noting that “the language at issue must be ambiguous” before we grant the agency‘s interpretation deference). Here, I believe the statute unambiguously makes clear that, in this context, “public interest” cannot include traffic safety factors.
Chapter 27 of the Water Code regulates the permitting of injection wells. The Commission is charged with permitting injection wells for the disposal of oil and gas waste, while the Texas Commission on Environmental Quality (“TCEQ“) is charged with permitting injection wells for the disposal of industrial or municipal waste.
We do not defer to agency interpretations of unambiguous statutes. Although I agree with the Commission that it need not consider traffic safety when permitting injection wells, I do so because chapter 27 of the Water Code so requires. The principle behind the Court‘s holding would require deference to a future Commission‘s decision that denied a permit based on the consideration of such traffic safety factors as the presence of trucks hauling saltwater on narrow neighborhood roads. I believe, to the contrary, that the statute‘s language and context preclude such an interpretation as a matter of law. Because there is no legitimate role for deference here, and because the statute prohibits consideration of traffic safety in the Commission‘s decision to issue injection permits, I concur in the Court‘s judgment.
Phyllis Anne WOODALL, Appellant,
v.
The STATE of Texas.
No. PD-1379-09.
Court of Criminal Appeals of Texas.
March 2, 2011.
Notes
(1) that the use or installation of the injection well is in the public interest;
(2) that no existing rights, including, but not limited to, mineral rights, will be impaired;
(3) that, with proper safeguards, both ground and surface fresh water can be adequately protected from pollution;
(4) that the applicant has made a satisfactory showing of financial responsibility if required by Section 27.073 of this code;
(5) that the applicant has provided for the proper operation of the proposed hazardous waste injection well;
(6) that the applicant for a hazardous waste injection well not located in an area of industrial land use has made a reasonable effort to ensure that the burden, if any, imposed by the proposed hazardous waste injection well on local law enforcement, emergency medical or fire-fighting personnel, or public roadways, will be reasonably minimized or mitigated; and
(7) that the applicant owns or has made a good faith claim to, or has the consent of the owner to utilize, or has an option to acquire, or has the authority to acquire through eminent domain, the property or portions of the property where the hazardous waste injection well will be constructed.
Id.The [TCEQ], in determining if the use or installation of an injection well is in the public interest under Subsection (a)(1), shall consider, but shall not be limited to the consideration of:
(1) compliance history of the applicant and related entities under the method for evaluating compliance history developed by the [TCEQ] under Section 5.754 and in accordance with the provisions of Subsection (e);
(2) whether there is a practical, economic, and feasible alternative to an injection well reasonably available; and
(3) if the injection well will be used for the disposal of hazardous waste, whether the applicant will maintain sufficient public liability insurance for bodily injury and property damage to third parties that is caused by sudden and non-sudden accidents or will otherwise demonstrate financial responsibility in a manner adopted by the [TCEQ] in lieu of public liability insurance. A liability insurance policy which satisfies the policy limits required by the hazardous waste management regulations of the [TCEQ] for the applicant‘s proposed pre-injection facilities shall be deemed “sufficient” under this subdivision if the policy:
(A) covers the injection well; and
(B) is issued by a company that is authorized to do business and to write that kind of insurance in this state and is solvent and not currently under supervision or in conservatorship or receivership in this state or any other state.
Id.