Supreme Court of Texas Reverses Appeals Court in Oil and Gas Waste Injection Well Permitting Case

By: Carlos J. Moreno

In Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water, No. 08-0497, 2011 WL 836827 (Tex. Mar. 11, 2011), the Supreme Court of Texas reversed the Austin Court of Appeal’s finding that the Railroad Commission (the “Commission”) has to consider broad public safety concerns in the permitting of proposed oil and gas waste injection wells.

The case involved a proposed oil and gas waste injection well in the Barnett Shale Area. Before the Commission can grant an injection well permit, the Texas Injection Well Act requires it to find that the use or installation of the injection well is in the public interest.  At the administrative hearing, a group of residents living near the well (“Texas Citizens”) expressed concern about the large trucks hauling fracing waste water and whether the trucks would damage nearby roads. The Commission concluded that it had no jurisdiction to regulate traffic, and granted the injection well permit after finding that doing so would be in the public interest. Subsequently, Texas Citizens challenged the Commission’s findings in state court, arguing in part that the Commission should have considered traffic safety concerns in its public interest inquiry. The trial court found in favor of the Commission, but the appeals court reversed. The court of appeals found that the Commission had abused its discretion in interpreting the public interest inquiry too narrowly. The Commission and the proposed injection well operator appealed to the Supreme Court of Texas.

The supreme court framed the issue as a statutory construction inquiry. The court evaluated whether the commission’s interpretation of the public interest inquiry, as including only matters related to oil and gas production, should be given judicial deference. Looking at Texas case law, the court found that the Commission’s interpretation of the “public interest” language should be given “serious consideration” if the construction is reasonable and does not contradict the plain language of the statute. 

The court pointed to several factors in concluding that the Commission’s interpretation should be upheld. First, the court noted that the statute specifically instructed the Texas Commission on Environmental Quality (TCEQ) to consider roadway concerns when permitting other types of injection wells, but did not include similar language for oil and gas waste injection wells regulated by the Commission. Second, the court noted that while the “public interest” term is ambiguous and can support more than one interpretation, the interpretation offered by Texas Citizens would mean that the Commission “would have to consider and weigh a limitless number of factors beyond the Commission’s institutional competence” in oil and gas operations. Finally, the court pointed to how long the Commission’s interpretation had been in place, noting that an agency’s long-standing interpretation of a statute is particularly worthy of deference because if the legislature disagreed with the interpretation, it could have amended the statute appropriately. 

Three justices concurred in the judgment, but would have found that the statute itself unambiguously precludes consideration of traffic safety concerns.

The court’s holding means that as part of the public interest inquiry required for issuance of an injection well permit, the Commission can continue to only consider matters related to the production of oil and gas.

The full text of the opinion is available at the following link:

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latta stephenson - May 3, 2011 12:08 AM

We have a salt water disposal well at the corner of our county road and a TWO lane highway. We have been told there will be "only" 30 trucks a day from this particular company. But they would not say how many more trucks will be allowed that are not their company trucks. TXDOT says they will only do something about the highway turning situation if there is a major accident (they are out of money). Truck traffic has tripled on the highway because of oil and gas activity. This turn off is on a big hill. Trucks gather speed on this hilly highway just so they don't have to slow down going up this hill. It will be a mess when a disposal truck is needing to turn left and has to wait for oncoming traffic, while other trucks are coming up full speed behind the stopped truck. I'm not even factoring in the deer, wild hogs and fog. I can't believe this company can be this stupid. There were other alternatives, but that would require more money and would take too long to work out the logistics. Their words - not mine. What's so sad about this is the trucks and drivers won't get hurt in a wreck, they will be the ones to smash the car carrying a family.

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