A federal judge has to decide whether sediment runoff from the controversial “Cop City” police and fire department training center near Atlanta violates the Clean Water Act and is cause for stopping the project temporarily, after hearing both sides of the argument this week.
The judge may also dismiss the underlying environmental lawsuit, as defendants have asked the court.
At stake is whether construction can continue on the project’s 171-acre footprint in a forest south-east of Atlanta if pre-established state limits on sediment running off the site into Intrenchment Creek were already exceeded before the project started, as plaintiffs allege – and are even higher now.
Opposition to the project is in its third year, and entered global headlines after police shot and killed activist Manuel Paez Terán, or “Tortuguita”, on 18 January, while camped nearby in a forest public park. The killing of the environmental activist was the first of its kind in American history.
The motion for a preliminary injunction pits Atlanta-based environmental group, the South River Watershed Alliance (SRWA), against the city and the Atlanta Police Foundation (APF), the non-profit organization behind the training center project.
If the suit is successful, it could also lead to courts elsewhere being more likely to enforce the federal law, which would help clean up other rivers, said Jon Schwartz, attorney for SRWA. The creek flows into South River, which American Rivers, a national environmental group, named in 2021 as one of “America’s Most Endangered Rivers”.
The plaintiffs filed the motion and the underlying citizen lawsuit based on Clean Water Act violations in August and this week was the earliest a judge could hear arguments on their bid to pause the project, even as clear-cutting and the pouring of cement have continued apace.
One question district court judge – and Trump appointee – Jean-Paul Boulee asked repeatedly underscored the case’s importance, as he asked defendants to name a previous district court opinion that offered guidance in considering such a citizen suit. They proffered a supreme court case that involved one state suing another over development affecting water quality.
A central legal issue in the case are 15 words in the state’s general permit for development projects, created by the Environmental Protection Division: “No discharges authorized by this permit shall cause violations of Georgia’s in-stream water quality standards”. Those standards – including sediment levels – are set in accordance with the Clean Water Act, and plaintiffs say the project is causing such violations and will continue to do so.
The issue of sediment is not a trivial one, as “sediment runoff is the No 1 polluter of rivers and streams in the US, and the reason the [federal] Environmental Protection Agency classifies them as ‘too dirty’ for fish and other fauna”, said Sarah H Ledford, a geosciences professor at Georgia State University.
This runoff then affects macroinvertebrates – insects in their nymph and larval stages, snails, worms, crayfish and clams, for example – which play important roles in aquatic and terrestrial ecosystems.
The city and APF disagreed about sediment levels entering the creek, and also made sweeping arguments about the public interest they say would be impaired if the project is halted even temporarily.
The two-hour hearing was visually striking in its contrasting display of resources, as Schwartz sat on one side facing the judge, while five attorneys sat on the other. The Atlanta chief of police, Darin Schierbaum, also sat in the audience through the proceeding, as did top fire department staff.
When Judge Boulee asked about balancing public interests, Schwartz asserted “there will no be irreparable harm” to Atlanta or APF if the project is paused, and that the police will continue to train in existing facilities. Meanwhile, he said, “you undermine confidence in the rule of law if the city is violating [federal] law”.
But Simon Bloom, attorney for the APF, claimed that the training center “is the single most important public safety project in decades in this city – maybe since the conversion of buggies to cars”.
He also accused the plaintiffs of having political motivations, not environmental ones, and that not seeing any “dead fish” meant there was no “evidence of irreparable harm”. He noted that sediment measurements offered by plaintiffs were nine months old – which Ledford, who researches urban water quality, said was because the USGS, a federal agency, stopped measuring turbidity in the creek, a proxy for sediment levels, in February.
The agency said the move was prompted by safety concerns surrounding protesters against the project – but in March, within weeks of USGS removing the gauge, DeKalb county closed the public park portion of nearby South River Forest, removing access by activists to what had been ongoing campsites in protest against “Cop City”.
Police officers have also monitored the construction site on the ground and by helicopter since then, and there have been no incidents that authorities have described as violent or dangerous. Plaintiffs also submitted photos taken more recently to the court, showing sediment entering the creek from a tributary running off the construction site.
“It’s an academic conversation and does not rise to the level of empirical evidence this court needs,” Bloom said. Plaintiffs also included testimony from a handful of scientific and policing experts; defendants had none.
Bloom also referred to the property destruction some of the activists opposing Cop City have engaged in – including the burning of 12 cement trucks the day before, belonging to a local company that had been photographed working on the site. “We’re … building in a war zone,” he said.
Jackie Echols, SRWA board president, said afterward: “I was really just appalled. Given the serious nature of the Clean Water Act, the issues related to water quality – I was surprised at the theatrics.”
Ledford underscored that the case was “not just about environmental harm, but environmental justice harm”, as neighborhoods surrounding the Cop City site are mostly Black, and the area has a history of industrial pollution.
“Why here?” she said.
