Starrh and Starrh Cotton Growers v. Aera Energy LLC

The dispute in this case arises out of an alleged subsurface trespass resulting from the migration of wastewater produced from oil production activities on land owned by Aera Energy LLC (Aera) and adjacent to land owned by Starrh and Starrh Cotton Growers (Starrh). The wastewater, called “produced water,” is naturally occurring water which is pumped out of the deep ground in conjunction with the extracted oil. It is naturally high in salts and other minerals. The water is disposed of by discharge into unlined percolation ponds. The produced water percolates down and moves into the underlying aquifers. Over time, the produced water has migrated into the aquifer underlying Starrh’s property, reducing the quality of the subsurface water.

The appeal raises a number of unique legal issues. We hold that the trespass here is continuing in nature. In addition, we conclude that the evidence does not support the damages award, and that the jury was not adequately instructed on how to calculate restoration damages. At a minimum, the jury needs to be instructed that if it determines damages should be awarded it must decide (1) how much it will cost to restore the groundwater under…