112 European Environmental Law Review April 1994
An Authoritarian Eco
Ils There the Threat of an
Authoritarian Ecological State!
Michael Kloepfer*
Protection of the environment by the state leads to am
enormous increase in the power of the modem state.
Leaving aside the limits of a constitutional state there
exists, especially in the case of ecological crises, the danger
of the establishment of an authoritarian ecological state.
This danger must be opposed by the ecological renewal of
the liberal community.
It is true that protection of the environment may be
understood as the safeguarding of liberal preconditions
and also of basic rights, as an attempt to safeguard all
ecological security in the end but, nevertheless, it is
obvious that freedom and protection of the environment
exist in an elementary relationship of tension. A lot of
economic, but also private activities (for instance leisure
time), lead to ecological damage, the restriction of which
by environmental law is understood as interference with
the freedom of the people concerned. This tension
between freedom and the protection of the environment
also infiuences the question whether our free demoracy
could develop into a kind of "Okodiklatu~"~.
Increasing Impoflance of the Protection
of the ~niironment
The enormous increase in the importance of environ-
m e n d protection as a result of the precarious situation of
the environment and of a strengthened environmental
awareness of the population, leads to the fact that state
measures to protect the natural bases of life are backed up
by a far-reaching social consensus. The political parties
h d themselves - apart from rarher delaying phases (as
now) - in principle in a competition by which they outbid
each other in the field of environmental policy. Sometimes
one gets the impression that the cause of environmental
protection now justifies almost every means. But just at
this point there comes about the, perhaps underestimated
until now, danger for a liberal society in that the protec-
tion of the environment (in a precise case) is possible only
at the expense of other legally protected rights. A balance
of society as a whole can be expected most from the
pressure groups representing interests that damage the
environment (economy, transport) and from Illinistries
and other bodies serving them de facto. It is quite obvious
that in such a balancing act - especially in a time of
economic weakness - the equilibrium may be altered at the
expense of the protection of rhe environment. The act of
balancing social counterforces is, therefore, a permanent
task of the modern, moderating state which, nevertheless,
must discharge its task of political leadership.
Restrictions on Freedom Resulting from
Environmental Protection
The restriction by the state of certain kinds of behaviour
which cause damage to the environment, the permanent
bringhg forward of the threshold of intervention by the
state from the defence against danger to a mere reduction
of the risk ( Y ~ s o z g e ~ n z i >the
~ ) ,increasing loss of the
possibility of using goods relevant to the environment
for private purposes (for example land, water), the alloca-
tion by the state of certain rights to use environmental
goods (for instance water), but also the not always
immediately perceptible - and adjustable by a state under
the rule of law only with difficulty - indirect forms of
state-directed behaviour in the course of the protection
of the environment (taxes, warnings, etc), may lead to
essential restrictions on the freedom of the individual,
who may feel to an increasing extent no longer to be a
person acting responsibly but rather as the object of an
ecologically-motivated state limitation. Often it is not so
much the individual measure of environmental protection
by the state that leads to anxiety but the random cumula-
tion of various rules, charges and expectations of
behaviour with their "synergistic" political and economic
effects. Policy and right are facing almost helplessly this
"general interference7', which is often aggravated by
delaying legal proceedings. The basic rights and the prohi-
bition of excess are useful to control selected individual,
but not cumulative, interference. Additionally, there is the
fact that traditional forms of the individual power to
enforce right, h a t is the concept of basic rights and of
the simple subjective public rights including their legal
protection, were elaborated in order to defend the laws
and rules of a state acting bindingly for one side. These
traditional instruments of defence in favour of individual
freedom are however, almost ineffective faced with a
smoothly emerging ("motivating") state which rather
stimulates than cornmands behaviour (for example by
subventions or persuasion).
Not only is there emerging the decisive question whether
the subjective public right, the classic instrument for
safeguarding freedom with the help of a state under the
rule of law that is handed to the individual, is still useful as
a basic rule for a state which will have to abolish the
concept of ecological resources as so-called free goods and
deal with scarce ecological resources. Is it not w e that in
the future one will have to start from a comprehensive
ecological duty of the basic rights, and indeed, is it really
possible to put into practice basic and individual rights
to damage to the environment (for instance claims -
according to basic rights - to use equipment which is a
danger to the environment) and is it still legitimate at all
today? Anyhow, evident socially dangerous, reprehensible
damage to the environment should not - right from the
beginning - be protected by basic rights. Is the starting-
point of individual claims and responsibility regarding
collective ecological goods really a step forward or will
there come about a far-reaching fading-out of individuality
as society develops the legal pattern of allocating respnsi-
bility and a collectivisationof claims and duties because of
the problems of the amount of environmental protection?
Although p y "only" economic freedom is in dan-
*Professor of Ecological Law rhe the HumbolBt UnivPm'ry, Berlin
'Eco-dictatorship.
'Principle of precaution.

An Authoritarian Ecological State?
ger, this is very often an essential precondition for political
freedom.
Although, on the way to more ecological determination
by the state, one must also take into consideration legal or
basic rights extending the tendencies of environmental
protection (for example in the direction of so-called auton-
omous rights of nature or of a basic right for protection of
the environment). Closer examination of such legal exten-
sions shows that they serve more to weaken the classic
idea of a subjective public right or of the idea of a basic
right respectively. The ideal of basic rights cannot be
maintained where it is not the aim to defend human
individuals and their goods against the predominance of
the state.
Burdens Caused by the Protection
of the Environment
For the individual, protection of the environment may be
a h a a c i d a d social burden that should not be -under-
estimated. The state has to be aware of this fact in order
not to cause, as a result of the protection of the envi-
ronment, disadvantages to or restrictions on the already
limited possibilities of socially weak people. It is well-
known that protection of the environment by the state may
lead, de facto, to discrimination against small commercial
enterprises in comparison to large-scale industries. To this
extent, the social responsibility exercised by the state
restricts the protection of the environment in favour of less
efficient parts of society.
During the present enthusiasm for the role of so-called
economic instruments in the protection of the environ-
ment ("more protection of the environment at less cost"
by tradeable emission permits permitting damage to the
enviromene for example) &is is not dways suffkiently
taken into account; as in general, social and political
limits, requirements of the rule of law, but also the eco-
logical limits of these economic instruments should be
considered to a greater extent in the future. The specific
risks regarding the state under the rule of law are to
be found in the characteristic bluntness of remedies, in
the clever inclusion of "voluntariness" of the concerned
(which reduces legal protection) as well as in the danger to
the protection of third party rights (especially those of
neighbours). Ecological limits result from the specific
insecurity of the effect of economic hstmmenrs. By the
way, it is impossible that nature can be purchased as one
wishes. Ecological goods are just not goods like all the
other economic goods.
Emerging Possibilities of Interference?
The above mentioned dangers to the liberal and social
state under the rule of law, resulting from a one-sided
protection of the environment, are confronted by the fact
that the environment - in spite of the results achieved in
the last few years - is not at all in a satisfactory state. The
-
governments of the future must understand to an even
greater extent, the completeness of the environment as a
task as well as a standard. The "Um~eItstaat"~,described
as a state adopting responsibility for the natural bases of
European Environmental Law Review April 1994 1 13
life, therefore, will probably have to make even more far-
reaching decisions in order to maintain and reinstate the
environment (for instance in relation to transport and
refuse disposal). A further increase in state power result-
ing from this fact will be seen. The permanent creation of
new laws means in practice that new possibilities of inter-
ference are always being placed at the disposal of the state.
Is it, therefore, true to say that the way towards a total
0kostaat (eco-state) - in which the right of freedom is
completely or to a large extent overtaken by unlimited and
excessive state measures in the field of environmental
policy - is already pre-determined? Is it possible, then, to
compensate, at least partly, for losses in traditional liberal
rights by the right of participation in statemade eco1ogicd
decisions? Or, on the way towards an "Okodiktatur", or at
least towards its initial form, is the kind of state unavoid-
able that indeed safeguards the environment but uses
totalitarian forms of rule for this purpose and destroys,
thereby, its citizens' democratic freedom and liberties
under the rule of law? Is that supposed to mean that we are
on our way towards a totalitarian ecological supervising
and allocating state which - if necessary and in order to
safeguard its rule - even uses devastating concepts of an
enemy in the form of a world ecological destructor? Does a
striving for an almost complete exclusion of any risk lead
to a justification of a solicitous state suffocating freedom,
in which the slogan "No freedom without risk" finds its
pathetic reverse "Without risk no freedom"?
Prognosis of the Trend
In order to answer these questions an anticipatory analysis
- which is not easy and is necessarily insecure - of the
possible relevant trends in the development of the com-
munity must be made. In this respect, only the develop-
ment of individual states is taken into account here. The
organisation of international protection of the environ-
ment cannot be examined here, although the global
dimension of a lot of ecological problems can lead an
individual state to the limits of its power. Normally, global
strategies for the introduction of comparable international
standards for environmental protection are necessary in all
states, and are linked with a policy of ecological compen-
sation between the first and the third world. Of course,
visions of an ecological world government make one feel
rather apprehensive, taking into consideration our tradi-
tional constitutional structures, because a lot of states in
the world do not achieve this liberal and constitutional
standard but would be entitled to participate in such a
world government. How, in the end, an ecologically orien-
tated state could (or should) look like cannot be discussed
in detail here. But the possibility that this state - irrespec-
tive of its original constitution - could change finally into
an "Okodikratur" cannot be excluded, because of the
already foreseeable reduction in ecological goods, at least
during an aggravated ecological situation similar to a
crisis. Ecological need can produce a state of emergency
and this is, without any doubt, a splendidly fertile soil
3Ecologicalstare.
114 European Environmental Law Review April 1994
An Authoritarian Eco
for totalitarian regimes. If the state sinks into an ecological
chaos an ecological-authoritarian order will result from it.
Describing this danger of a "Okodiktatur" as a "theoreti-
cal" face only serves to underestimate the problem. It
would be better to work in good time against such a
development with the help of early analyses of the possible
causes.
It is, in any case, reasonable to have a sceptical look at
naive ecological world outlooks, especially at those which
understand the 'haturalness" of rule (in the sense of
harmony with nature), as a kind of defence against totali-
tarian rule. This theory fails to notice that a rule developed
on the basis of nature very easily degenerates into some-
thing being totalitarian and that the development of
constitutional power in the meaning of the western consti-
tutional states is nothing other than a long-lasting striving
for a limitation and restriction of "naturally born" power.
Nature is not organised "democratically"; in nature the
law of the stronger predominates, even when we call the
result an ecological balance of forces.
Since the middle of the 1970s there has been an increase
in the number of those voices (their motives are altruistic,
but p d y also transparent and directed at certain inter-
ests) who warn against a trend towards totalitarian systems
of ecological states against the idea that the adaptation
of the human being, that became necessary because of
the ecological crisis, to the new ecological framework
conditions is only possible with the help of a strong state,
centrally directed and organised according to the prin-
ciples of a planned economy. The planning and allocating
state equipped with extensive competence is said to be
the only one that is able to work as an "authority of
regulation" of the many-fold requirements of the environ-
meat. In this respect, it is possible that the state puts into
practice a monopoly of decision-making necessary for a
dictatorial regime and maintains the relations of ownership
valid until then. For this reason, such a form of state is
sometimes called "eco-fascism" - a term that does not
make the whole thing transparent. Or the monopolisation
of state power takes place in the elimination of the private
right of disposal of relevant ecological goods, a status that
could - under the proviso - be called "eco-socialism".
Neither variety should be welcomed politically.
Expecting that state and society can defend themselves
successfully against a revolutionary development, such a
scenario is not very probable in the near future. But this
does not, however, mean that there could not emerge
other, more hidden forms of an "Okodiktatur" or steps
towards it. Forms of authoritarian-bureaucratic systems of
rule that have a tendency towards a kind of care that
suffocates freedom seem to be possible in rhis respect.
During this process one may expect a slow, insidious
growing of these forms of rule while, at the beginning, the
ruling constitutional order is formally maintained. Martial
eco-dictatorships are more likely to result from elementary
ecological catastrophies (with the effect of following-up
crises in the economy and policy).
Thus far, it seems to be quite possible &at in this
ecologically motivated movement towards an authorita-
rian, or even dictatorial state, a phase of weakening of the
state's power will be passed through initially. In such a
phase the state cannot resist the interests of industry,
cannot keep up with the pace of the sciennfic and techno-
logical change and cannot put into practice the great
number of environmental laws. From the weakness of the
state there could, then, result a predominance of the state.
Losses in the Identity of a Constitutional
State
The far-reaching changes, up to now too linle described,
in the preconditions and effectiveness of the constitution
of the Federal Republic of Germany caused by the
challenge of ecological thinking, renders possible the clari-
fication of its inner, system-destroying power. In the
Federal Republic of Germany (or elsewhere) an ecological
reduction of basic rights is perceptible, also an illegiti-
misation of federal or communal, narrow structures of
decisions in the face of broad ecological problems and the
failure of the controlling and regulating mechanisms of a
state under the rule of law in the face of dynamic, state-
directed instruments of environmental protection (legal
protection against "weak" instruments). Additionally,
traditional guarantees set up by the state under the rule
of law (eg devaluation of the power of existence of authori-
zations by orders given subsequently) are deprived of
their power, and forms of decision of a representative
democracy are transformed or driven out respectively by
ecological pdcipation (for instance by the influence of
citizens' initiatives). All this shows clearly that the Federal
Republic of Gerrnany can loose its political identity to such
an extent that it could become (or even must become) an
almost unlimited ecological state.
The necessiry resulting from the ecological crisis of
putting into practice appropriate restrictions in nearly all
spheres of life, could be stated as an almost self-evident
justification of the restrictions on freedom that must neces-
sarily be expected. In the field of environmental precau-
tion, taking a reduction in emissions as an end in itself
there is, for example, an evident danger of the possibility
that the freedom-insuring idea of the prohibition of excess
collapses because of the absence of a precise relation
between purpose and means. The means (for instance the
reduction of emissions) is no longer tried out as a means to
an end (eg protection of human health) it is simultaneously
the end itself.
The accumulation of the most manifold ecological
instruments allow the state to practice an ecological rule
which can bestow "natural force" upon it. Furthermore,
in the end the state becomes a "natural force" itself which
demands urgent juridical regulation. In the face of the
ecological power of the state one has to consider also that
today political catastrophies may easily lead to ecological
catastrophies (eg wars) and vice versa, ecological catastro-
phies may cause political crises. In the same manner that
the social state assumed responsibility for the situation in
society - and for this reason it is tested on the social
situation - the ecological state designed on the basis of
responsibility for the environment must be tested, too,
on the situation of the environment. Destruction of the
environment, thus, destroys the state.
Rule of Ecological Elites?
A stage below such dramatic crisis-like aggravations, eg,

Authoritarian Ecological State?
a bureaucratic-technocratic regime of "ecological elites",
seems to be possible in the medium term, a regime
that could be legitimised especially by the ecological con-
sciousness and competence of its representatives and the
ecologically-oriented policy they stand,for, but not neces-
sarily by the majority will of the population. Thus, an
at least partially authoritarian, centrally organised and
directed state system could be established under the super-
ficial maintenance of the ruling constitutional state struc-
tures. Anyone who looks more closely at the problem will
see already certain indications of the beginning of a rule
of experts on the ecologically-relevant ways of decision-
making in Germany; whereby this rule of experts is politi-
cally not really responsible and, perhaps, cannot be
included as part of the democratic process. A further
development of societies being democratically structured
towards regimes of ecological elites and away from demo-
cracy, seems to be at least possible in the light of the
increasing destruction of the environment and the increas-
ing necessity of state regulation of ecologically relevant
behaviour.
Ecological Renewal or Authoritarian
Distortion of the State
The ecological renewal of a liberal community may also be
possible. The inclusion of a Sraarszielbestimmung4,mcor-
'
porating environmental protection into the basic law could
be such a signal to commence - nothing else. The firm
incorporation of ecological aspects into the political, juri-
dical, economic and social system of decision-making of
the Federal Republic of Germany seems to be ever more
necessary. Whether there will come about an ecological
renewal of the modern conseieudonal state or rather an
ecologically authoritarian structure of rule depends most
of all on the problem whether, and how fast, the ecological
crisis (globally as well as regionally) can be managed.
For it may be doubted that in the case of a dramatic
aggravation of the ecological crisis the political and legal
system ruling up to now in Germany and similar states
will be able to restrict - under existing conditions - the
measures necessary for the maintenance of the bases of life
to such an extent that the liberal and constitutional level
currently achieved may be maintained. One must be afraid
thae the lirnits of environmental protection see up by a
social state would be crossed.
Ecological measures of the state which do not exist or
are inefficient, which are taken or which work too slowly
lead this state - from the point of large sections of the
population - into an extended crisis of credibility. Thus,
sigrdcant ecological crises may lead easily to state crises.
For this reason, efficient protection of the environment
safeguards the constitutional consensus vital to our
European Environmental Law Review April 1994 115
community. The earlier already perceptible ecological
problems are opposed efficiently, the less will be the
"cost" of environmental protection for a state under the
rule of law.
Solutions
An efficient protection of the environment presupposes,
however, a kind of environmental policy that is shaped in
the longer term, that is both anticipatory and efficient.
Almost no other sphere of policy requires responsibility
for the long t e r n in the way that environmental protection
does. The thought processes of democratic politicians
during election periods can keep up with this challenge
only to a very limited extenr. For this reason, one has to
take into account the creation of institutions of long-term
responsibility in order to enable democracy to be effective.
In general, an efficient kind of environmental protection is
necessary in a community with a liberal constitution.
Environmental protection is impossible at "Nulltarif ' 5 ,
that is without restrictions on freedom. But the limitation
of the unavoidable restraints on freedom to essential cases
must remain the aim. The instruments of environmental
protection require, because of the insidious danger of loss
of freedom linked with them. an earlv analvsis of their
compatibility with the constitution in order to prevent
the destruction, caused by unlimited environmental pro-
tection, of the political system of a democracy enjoying the
obligation of freedom, the rule of law and related social
aspects. For quality of Me is not only determined by an
environment worth living in but also by a human political
system. It seems to be necessary that measures should
be taken which safeguard, on the one hand, efficient
environmental protection but do not, on tdae other hand,
extend further state power and reduce all the dangers of
moving towards an Okodikratur. One should particularly
think of a partial denationalization of environmental
protection with the help of economic instruments, of
the inclusion of enterprises as subjects of environmental
protection, of ecological co-operatives or perhaps of envi-
ronmental laws created by the economy itself (or in asso-
ciation with ecological associations) but controlled by the
state. This far, the principle of co-operation in German
environmental policy as a principle of environmental pro-
tection contributes to the creation of efficient environ-
mental protection in the future in a free, democratic and
ecological state under the rule of law. The Okodiktarur
must not, and need not, be our fate.
4Rules determining state directives.
'Free of charge.