Environmental Law News Update

December 23, 2021

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the post-Trump US environmental agenda, how we did with our predictions for 2021 and some festive musings on waste.

The post-Trump US environmental agenda

The US Department of Justice has just signalled its intent to prioritise prosecuting individuals who commit corporate environmental crimes, in order to encourage environmental compliance.

Environmental prosecutions reached an all-time low during the Trump Administration. But in a speech given on 14 December at the American Bar Association’s National Environmental Enforcement Conference, Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division Todd Kim stated “A genuine threat of criminal prosecution can and will change the conduct of individuals and corporations who would not be deterred by the threat of civil enforcement alone”. The Chief of the DOJ’s environmental crimes section stated at the same time that the DOJ is “going back to a little more stick than carrot”.

The shift in policy also emphasises the need for co-operation with inspectors during site visits and requiring companies to undertake a root and branch review of their own compliance policies to identify and rectify any weaknesses that may exist.

Where the US leads, others often follow. The US Attorney General, Merrick Garland, and the EU’s Commissioner for Justice, Didier Reynders, met together in Washington on 16 December, where they stressed the importance of holding accountable those responsible for environmental crime. At the same time, Stop Ecocide International is actively campaigning for ecocide to be added to the list of crimes on the Rome Statute of the International Criminal Court, which would result in ecocide becoming an arrestable offence and those responsible for acts or decisions that lead to environmental harm being liable to criminal prosecution.

Our January predictions

We were possibly slightly ahead of ourselves with our predictions back in January. The Environment Act was repeatedly delayed and whilst the Office for Environmental Protection has now been formally established, it has yet to make its mark. Dame Glenys Stacey’s vision for the OEP is ambitious: in an interview back in March with ENDS report she stated “[The OEP] will be an agile, intelligent, listening organisation, really a wise organisation over time” and that its independence is “all in the doing”. The first complaints that the interim OEP has dealt with all relate to local councils for alleged failures to follow environmental impact assessment regulations and alleged breaches of Habitats Regulations. On a different note, the export of waste abroad does indeed remain high on the agenda but the headlines have been limited with the Environment Agency’s prosecutions of Biffa being the obvious exception. And what of the indirect emissions of professional services firms, including lawyers? Was 2021 the year when ESG became mainstream? Arguably yes, but there is plainly still a considerable way to go. We look forward to making our fresh predictions in the New Year.

Going To Waste – This Year’s Christmas Songs

Having covered Sewers, Water Pollution, Noise Nuisance, and Air Quality, it’s getting more difficult every year. However, there’s still at least one opportunity that we mustn’t “waste” ….

This choice of topic provides a golden opportunity to draw the attention of our readership to one oeuvre of the great, under-recognised French songwriter Serge Gainsbourg. Many people of a certain age and era remember fondly “Je T’aime Moi Non Plus”, his only hit outside France, the international success of which was heavily propelled by its being banned almost everywhere. However this was merely one of hundreds of songs written by Monsieur Gainsbourg, the lyrics of which veer between genius and profanity. They include the little-known “Ballade de Johnny Jane”, the theme music for the film “Je T’aime Moi Non Plus” (which confusingly does not feature the song which gives it its name). The film is entirely concerned with the upheaval which results to the life of the androgynous Johnny-Jane from the arrival of a bin wagon and its two drivers in an American one-horse town, with the mission of clearing the municipal tip. The song “Ballade de Johnny Jane” is an elaborate set of metaphors and allegories comparing aspects of human life with the operations of the waste industry. Try, for example, “Les décharges publiques sont des Atlantides, que survolent les mouches cantharides”.1

There’s at least one further song about dustbin men, “My Old Man’s A Dustman (Ballad of a Refuse Disposal Officer)” by Lonnie Donegan in 1960, although it doesn’t really espouse any environmental cause and concentrates instead on lame double entendres which, despite that French description of their character, would have been considered unworthy of deployment by Serge Gainsbourg and an insult to his art.

Another under-recognised (but by no means unsung) songwriter is Mike Batt, whose work went well beyond the Wombles in its subject-matter and profundity. However for present purposes, we need go no further.  Whilst best-known for their efforts at litter-collection, the Wombles had the entire waste hierarchy at the very core of their being. “The Wombling Song” alludes to both Re-use (“Making good use of the things that we find, things that the everyday folks leave behind”) and Recycling (“Pick up the pieces and make them into something new, is what we do”). There’s perhaps even a nod at Prevention in “Wombles Everywhere”, written in 1973, mentioning a pristine state of the planet which now seems gone: “And down among the icicles, where the polar bears hang out, there is very little Wombling to be done”. The plastics were just starting to arrive.

Nevertheless the core activity of the Wombles is undoubtedly Disposal and the battle against litter and fly-tipping. “Womble Burrow Boogie” urges that “We’ll take the opportunity, to clean up the community, together”, with catchy backing vocals telling us to “Clean it up! Clean it up! Pick it up! Pick it up!”. And surely everyone knows and obeys the admonition in “Banana Rock”: “Ooh la la la la hey banana, don’t you slip on the skin. Ooh la la la la hey banana, Womble up the rubbish and put it in the bin.” The song continues: “We have the solution to the pollution, I think it is easy to guess. It is so amazing, instead of just lazing, we certainly sweep up and clean the mess.” Has any litter Tzar (whatever happened to them?) ever delivered such powerful (even if not entirely successful) messages?

“Flytipping” by Suede is quite interesting. Genius.com suggest that it is actually about “a couple letting go of all their possessions and moving forward with the next stage of their lives”. If so, they’re a very selfish couple, and the song seems to this listener to dwell instead on the environmental damage caused by worthless possessions being casually discarded. But maybe there’s an allegory in there too. The fact that the Bond theme “The World Is Not Enough” was performed by the band Garbage is mildly amusing, but probably no more than an unfortunate coincidence.

There is other material, but not a lot, and much of it offers nothing beyond the title.2 Some of it is certainly rubbish. Maybe it takes the genius of a Gainsbourg to make a successful song of such a topic, but to be honest Mike Batt’s lyrics seem to be the most pertinent around, not least: “We wish you a Wombling Merry Christmas.”

1 “The council rubbish tips are states of Atlantis, over which the Spanish flies hover” is one fairly liberal translation of this complex word play. The phoneme “-ide” is deployed throughout the song as the principal rhyming sound. It’s all very clever stuff.

2 There’s a Spotify collaborative playlist “Songs about trash” but it doesn’t really contain much of interest. Someone has even unkindly included the Jeff Buckley version of “Hallelujah” by Leonard Cohen, in a presumed attempt at humour.

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