Can You Stop a Dangerous Project Before It’s Built? A Texas Court Says Yes, If You Plead It Right

By Trey Wilson, San Antonio Real Estate Attorney and Texas Water Lawyer

One of the more important questions in land use and nuisance law is this: do you have to sit still and wait for the damage to happen, or can you go to court before the project is built and before the fire, runoff, explosion, contamination, or market collapse actually hits your property?

Many people assume Texas law makes you wait. That assumption is wrong.

An April 2026 OPINION from the Third Court of Appeals in Austin makes the point clearly. The case arose out of Fayette County and involved a proposed 200-megawatt battery energy storage system, commonly called a BESS facility. Nearby landowners sued, claiming the project created a prospective private nuisance and seeking injunctive relief before construction and operation moved forward. The court of appeals held that the case should not have been thrown out at the pleading stage.

The opinion was issued by a panel including Justice Karin Crump (my law school classmate). For anyone dealing with rural land, industrial expansion, utility-scale development, or nuisance law in Texas, this is a significant opinion.

The Fight Was About More Than Fear

The landowners alleged that the proposed battery storage project would sit within roughly one mile of their properties. They claimed the project posed serious risk because lithium-ion battery facilities are susceptible to thermal runaway, which can produce extreme heat, fire, explosions, toxic gases, repeated reignition, and contamination of soil and water.

They did not stop at general fear. According to the pleadings described in the opinion, the landowners alleged that the project developer had publicly stated at a town-hall meeting that if a thermal runaway occurred, the plan was essentially to let it burn. They also alleged that local emergency response capabilities in Fayette County were inadequate to address that type of incident and that the risks threatened not just residences but nearby public and community locations as well.

They sought temporary and permanent injunctive relief and damages tied to loss of use, loss of value, increased costs, and loss of peace of mind.

The Trial Court Dismissed the Case Under Rule 91a

The defendants responded with a motion under Texas Rule of Civil Procedure 91a, which allows dismissal if a cause of action has no basis in law or fact under the pleadings. The theory was straightforward: no existing nuisance, no cognizable claim. The defendants argued that the case was based only on apprehension, fear, and emotional reaction to a lawful future operation, without any actual invasion of the plaintiffs’ property.

The trial court agreed and dismissed the lawsuit with prejudice. It also awarded attorney’s fees to the defendants.

That was a major ruling. A Rule 91a dismissal can end a case before discovery even begins.

The Court of Appeals Reversed

The Third Court reversed and sent the case back. That does not mean the landowners already won. It means something more basic and more important at this stage: they alleged enough facts to state a viable legal claim under Texas law. They were entitled to move forward.

Texas Nuisance Law Is Broader Than Many People Think

The court’s analysis rested heavily on the Texas Supreme Court’s nuisance framework, especially Crosstex North Texas Pipeline, L.P. v. Gardiner and Huynh v. Blanchard. Under that body of law, a private nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.

That interference can take different forms. It can include physical damage, economic harm to market value, injury to health, and psychological harm to peace of mind. That last category matters. Texas law does recognize that substantial interference with the use and enjoyment of property can include serious disturbance to a landowner’s peace of mind.

Nuisance is not a free-floating label. It is a type of legal injury, and it must be tied to legally culpable conduct. In this case, the landowners pleaded negligent nuisance. They alleged that the defendants breached a duty of care by leasing land for a high-risk industrial project without requiring adequate hazard-mitigation measures first.

You Do Not Always Have to Wait Until the Harm Has Already Happened

This is the part that matters most for Texas landowners.

The court emphasized that Texas law recognizes not just existing nuisances but also threatened or prospective nuisances in the injunction context. If the threatened injury is imminent and will necessarily be sustained, injunctive relief may be available. The law does not require a landowner to wait passively for a harmful condition to materialize where the facts show that the conduct is impending and the likely injury is real rather than speculative.

That point is critical in the context of industrial development. By the time a catastrophic event actually happens, the practical value of a lawsuit may be reduced. Landowners often need the ability to seek relief before construction or operation locks in a dangerous condition.

Why the Pleadings Were Good Enough

The landowners did not merely say they were nervous. Their petition, as described by the court, laid out detailed facts about the nature of thermal runaway, prior incidents at similar facilities, the project’s anticipated timeline, the lack of specialized emergency response infrastructure in the county, the project’s proximity to homes and community sites, and the way those risks already affected the use and enjoyment of their properties.

The court read those allegations liberally, as Rule 91a requires. When it did, the court concluded that the landowners had pleaded enough to support a claim for injunctive relief against a prospective nuisance.

That is exactly how the rule is supposed to work. Rule 91a is not meant to be a shortcut for resolving factual disputes that should be tested through evidence.

What the Case Means Going Forward

This opinion should get attention well beyond battery projects. Texas is seeing more large-scale infrastructure and industrial development in rural and semi-rural areas, including battery storage, solar projects, transmission infrastructure, water infrastructure, and data-related facilities. Those projects may be lawful, but lawful does not mean immune from nuisance scrutiny.

When a project is alleged to create a substantial and unreasonable interference with surrounding landowners’ use and enjoyment of their properties, Texas law may allow the dispute to proceed, including through requests for injunctive relief before the feared condition fully arrives.

Practical Takeaways

First, if you want to stop a harmful project before damage occurs, plead facts, not conclusions. Detail matters.

Second, Rule 91a is a real screening mechanism, but it is not supposed to eliminate fact-intensive nuisance cases where the plaintiff has actually alleged a coherent legal theory and concrete supporting facts.

Third, prospective nuisance remains a viable doctrine in Texas. That matters for landowners who live near projects that present unusual safety, environmental, or operational risks.

Fourth, peace of mind is not legally irrelevant. If a dangerous condition substantially interferes with the use and enjoyment of property, that form of injury may be part of the analysis.

Fifth, injunctions remain powerful tools, but they require careful pleading and eventually careful proof. The plaintiff still has to establish the elements for equitable relief, including wrongful conduct, imminent harm, irreparable injury, and lack of an adequate remedy at law.

Final Thought

Texas law does not require landowners to be helpless spectators while a dangerous project moves toward completion. But courts are not going to act on speculation either. The difference between a dismissed case and a live case often comes down to whether the pleadings show real facts, real risk, and a real legal theory.

This opinion is a reminder that if the danger is imminent and the nuisance is pleaded properly, a Texas court can hear the case before the damage is done.