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Both sides argue irreparable harm in Cop City environmental lawsuit

ACPC Staff Report

 “We are building in a war zone,” Atlanta Police Foundation (APF) Board Member, donor, and attorney Simon Bloom told U.S. District Court Judge Jean-Paul Boulee, during a two-hour hearing Wednesday morning over a civil environmental lawsuit that could halt construction at the Atlanta Public Safety Training Center. 

A court-ordered halt on construction, “even for one day” could seriously harm the public interest by forcing the APF to “leave the Alamo,” Bloom warned. 

Bloom announced 12 cement trucks have been destroyed in the past 48 hours as Atlanta Police Department Chief Darin Schierbaum, five high-ranking Atlanta Fire Rescue Department officials, and an army of lawyers filled one side of the courtroom behind him. Standing tall in a red bow tie, dark grey pinstripe suit, and Nike trainers, Bloom described the potentially dire consequences of delay for APF: “We are holding police and fire together with bubble gum and paper clips.” 

“And good leadership,” Bloom added. 

The cost of bubble gum and paperclips must have risen faster than inflation. APD’s annual budget of roughly a quarter billion dollars accounts for more than 30% of the City’s total spending. Atlanta spends more per capita on policing than 74% of departments around the US.

The APF-backed $100 million police and fire training center known the world over as ‘Cop City’ is Atlanta’s “single most important public safety initiative in decades,” Bloom said in a packed 19th floor courtroom inside the Richard B. Russell Federal Building in Downtown Atlanta. 

Despite having been “approved at every level—city, state, and, not explicitly, federal,” APF and the APD have spent hundreds of thousands of dollars defending it against “peaceful protestors,” a term Bloom used throughout his presentation, while also conflating the varied forms of opposition to the project. 

A court order halting construction and requiring temporary revegetation of 70% of the construction site could mean the end of the Cop City project, Bloom suggested. “We will simply have to leave the Alamo,” if the Court grants an injunction allowing the South River Watershed Alliance’s (SWRA) suit under the U.S. Clean Water Act (CWA) to proceed, he said. 

Bloom told the court that Intrenchment Creek—the protected waterway at the core of SWRA’s environmental lawsuit—is currently less polluted downstream from APF’s construction site than it is upstream, and the best thing for the water would be to allow construction to proceed. “We’re at the finish line,” Bloom claimed. Going on to say that over the next few weeks, APF contractors will install storm pipe drains, grates, and curbs. SWRA “makes it sound like the creek’s already dead…I haven’t seen any measurements. I haven’t seen any tests,” Bloom exclaimed. “You didn’t see any dead fish.” 

SWRA President Dr. Jacqueline Echols sat patiently across the aisle from Chief Schierbaum, occasionally resting her head on her arms. She led a multi-year campaign to get protections for the South River Forest and its waters enshrined in the City of Atlanta’s Charter as part of a larger movement to repair the harms of environmental racism in predominantly Black South Dekalb neighborhoods. The city adopted those protections in 2017, only to largely abandon them when approving the construction of the training center in 2021. 

Arial image of a pond on the training center construction site showing extreme runoff. Taken Nov. 6, 2023. Credit: Rocky

SWRA’s counsel, Jon Schwartz, told the court, “The only way to enforce the Clean Water Act here is by stopping construction.” Such an order is necessary, he explained, because the CWA requires sites like this one to comply with the Georgia Environmental Protection Division’s 47-page General Permit. The permit contains a clause prohibiting projects from exceeding water quality standards. According to Schwartz, APF’s violation of this clause permits SWRA’s citizen suit under the Clean Water Act.  

Irreparable harm to beings that rely on the stream for survival requires immediate judicial intervention, Schwartz told the court. SWRA offered written testimony by an expert in aquatic ecology suggesting that as a result of the AFP’s clear-cutting and construction activity on the site, macroinvertebrate aquatic life would soon be impossible in the stream that originates there and feeds into Intrenchment Creek. 

Schwartz also pointed to evidence from experts in sediment remediation and police training, along with photographs of clearly discolored portions of the stream running from the construction site into Intrenchment Creek to convince the court to pause construction. Schwartz explained, “there is no way to interpret Georgia’s existing water quality standards to authorize this.”

Judge Boulee’s questions throughout the hearing suggest he is unconvinced of the plaintiff’s arguments. “Is your beef with EPD or is it with the City of Atlanta and the Atlanta Police Foundation,” he asked Schwartz.  

Nearly any construction on the once heavily wooded site would displace sediment into the stream, Schwartz explained. Existing sources of sediment from municipal sewers carrying rainwater from roadways and other construction sites have put Intrenchment Creek and other nearby waterways over the current sediment limits—called Total Maximum Daily Loads—set by Georgia’s water protection agency.

Boulee repeatedly returned to whether a permitholder like APF, who he presumed to comply with every other part of its General Permit—a contention SWRA disputes—can still face suit if construction results in sediment runoff that exceeds water quality standards, notwithstanding compliance. 

In essence, Boulee wanted to know if construction that produces merely “one more drop, a piece of sand, a piece of red clay” in the waterway should face an injunction putting it on hold. “Is this a trump card?” the Trump-appointed federal judge asked.

Schwartz believes it is. “There’s no way to interpret Georgia’s existing water quality standards to authorize this,” Schwartz answered. 

Bloom appeared Wednesday morning as the first in a succession of three lawyers—the other two from Troutman Pepper, a large law firm hired by the City to defend against the latest lawsuit filed by the SWRA. APF Board Member and donor David Dantzler is a senior Troutman partner. 

The court took the matter under advisement without making a ruling on SWRA’s motion for a preliminary injunction, or on the City and the APF’s motion to dismiss.

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