(dissenting)—I believe the private attorney general doctrine should be followed in this state and that the appellant, Blue Sky Advocates, should recover its attorney fees from the State. I therefore dissent.
The American Rule
In all other common law jurisdictions, the award of attorney fees depends on the outcome of the case. Fee Shifting and the Implementation of Public Policy, 47 Law & Contemp. Probs. 187, 188 (1984). In the United States, however, absent some statutory, equitable or contractual exception, each party must pay for his or her legal fees, regardless of the result of the case. This practice dates back before the 19th century. See Arcambel v. Wiseman, 3 U.S. *123(3 Dall.) 306, 1 L. Ed. 613 (1796); Hauenstein v. Lynham, 100 U.S. 483, 25 L. Ed. 628 (1879). This facet of our legal system is so entrenched, and yet so unique, that it is referred to throughout all common law jurisdictions as the "American rule."
The United States Supreme Court explained the justification for the American rule in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 18 L. Ed. 2d 475, 87 S. Ct. 1404 (1967). First, litigation is inherently a risky proposition, and a party should not be penalized for merely participating in a lawsuit. Second, the poor would be unduly discouraged from pursuing their legal rights if they feared that losing the case would also cost them their opponents' legal fees. Finally, the cost of proving the amount of legal fees would pose an undue burden on judicial administration. Fleischmann, at 718.
The State of Washington has always followed the American rule. See Lovell v. House of the Good Shepherd, 14 Wash. 211, 44 P. 253 (1896); State ex rel. Macri v. Bremerton, 8 Wn.2d 93, 111 P.2d 612 (1941). Nevertheless, this rule is not absolute. Certain statutes allow for attorney fees (e.g., RCW 19.86, Consumer Protection Act), and this court has created exceptions to the American rule when overriding considerations of justice compel such a result. The majority recognizes the inherent power of this court to award attorney fees to a party involved in a lawsuit. The majority specifically states, referring to PUD 1 v. Kottsick, 86 Wn.2d 388, 545 P.2d 1 (1976), that "the traditional equitable grounds for an award of fees are available." Majority, at 122.
The Kottsick opinion describes the current equitable exceptions to the American rule. The first such exception has been referred to as the "common fund" rule. If a litigant succeeds in preserving or creating a common fund of money for the benefit of others as well as himself, the litigant may be entitled to receive his or her attorney fees from that fund. See Peoples Nat'l Bank v. Jarvis, 58 Wn.2d 627, 364 P.2d 436 (1961). This rule was first announced in *124Washington in 1911 in the case of Baker v. Seattle-Tacoma Power Co., 61 Wash. 578, 112 P. 647 (1911).
We recently expanded the "common fund" theory so that a litigant need not create or protect a specific monetary fund. If the litigant confers a substantial benefit on an ascertainable class, then fees may be awarded. Grein v. Cavano, 61 Wn.2d 498, 379 P.2d 209 (1963). I would note in passing that this decision was not based solely on "traditional equitable grounds," but instead represented an extension of the common fund principle by use of our inherent equitable powers.
Scarcely 10 years ago we again allowed attorney fees in a case which did not fit within the narrow constraints of the "common fund" doctrine. In Weiss v. Bruno, 83 Wn.2d 911, 523 P.2d 915 (1974), petitioners received attorney fees for their successful suit preventing the unconstitutional disbursement of state funds to private school students. The Attorney General's office, the State Treasurer, and the Superintendent of Public Instruction favored the unconstitutional delegation of funds, but the petitioners successfully brought an action saving the State millions of dollars. See Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973). Our reason for allowing attorney fees was based on this court's inherent equitable powers. Furthermore, that inherent power to award fees was not bound by tradition. We specifically held that in regard to our inherent power to grant attorney fees "we are at liberty to set the boundaries of the exercise of that power." 83 Wn.2d at 914.
I therefore believe that the majority errs when it refuses to extend our inherent power to award fees based on the notion that only traditional exceptions to the American rule are permitted. Our decisions in Grein and Weiss clearly indicate that we would allow exceptions when equity required it, and a wholesale denial of the private attorney general doctrine on the basis that it represents a further exception to the American rule is therefore inappropriate and at odds with prior case law.
*125The Private Attorney General Doctrine
In Weiss, this court granted attorney fees to successful individuals who, at great cost to themselves, saved the citizens of this state millions of dollars. In the case before us, this court refuses to grant attorney fees to the successful association which, at great cost to itself, saved the citizens of this state from excessive amounts of air pollution. I do not see any justification whatsoever for this dichotomy. I have no doubt that had this case concerned the citizens' pocketbooks, instead of their lungs, attorney fees would have been granted. Because there is no identifiable cash with which to pay the appellant for its laudable actions, this court will give it nothing at all. With such logic, it is little wonder that public interest lawsuits are brought so infrequently.
In Miotke v. Spokane, 101 Wn.2d 307, 678 P.2d 803 (1984), the lead opinion urged use of the private attorney general doctrine whenever three conditions were met: (1) the plaintiffs incur considerable economic expense, (2) the suit is aimed at an important legislative or constitutional policy, and (3) a large class of people benefit from the suit. These conditions, despite the majority's protestations to the contrary, would fulfill the purpose of the private attorney general doctrine. Individuals would be encouraged to pursue legal remedies which would benefit the public.
The majority has asserted that these criteria are too vague and undefined. Majority, at 121.1 disagree. By limiting the doctrine to those cases involving plaintiffs who incur a large economic burden, sufficient guidance is given to the courts. The plaintiffs not only must spend a great deal of money without hope of being reimbursed by virtue of their success (an event particularly likely in equity cases), but also the likelihood of action by public officials must be minimal. Otherwise, the plaintiffs need not incur the expense of litigation for the public good, as instead those duly authorized public officials will absorb the cost.
The second and third conditions would also carefully define the situations in which this doctrine may be applied. *126The second condition, that the suit be aimed at an important public policy, is the same condition implicitly inherent in our decision in Weiss. We held that the improper disbursement of large amounts of money in derogation of the constitution consisted of a sufficiently important public policy. Accord, Serrano v. Priest, 20 Cal. 3d 25, 569 P.2d 1303, 141 Cal. Rptr. 315 (1977). In Miotke, the lead opinion of this court held that the protection of the environment by preventing the discharge of raw sewage into the Spokane River clearly met the requirement of an important public policy. Protection of the State's environment, like protection of the State's funds, would qualify as protection of an important public policy. These criteria are sufficiently definite and narrow to limit the application of the private attorney general doctrine. Only a case designed to benefit large segments of the population, aimed at important legislative or constitutional provisions would qualify.
Finally, the majority concludes that it would be improper for this court to adopt the doctrine when the Legislature is deliberating it. Majority, at 122. The majority cites Laws of 1983, ch. 127, § 2, p. 619 which states:
The law revision commission shall conduct a study to analyze and evaluate the issues involved in enacting legislation to allow attorneys' fees to a prevailing party who acts as a private attorney general. The commission shall report its findings and recommendations, including proposed legislation, to the legislature prior to January 1, 1984.
No such report was prepared. As the Legislature has not taken further action after this 1983 statute, I would decline to accept the majority's assertion that the Legislature is still in fact deliberating this subject.
Conclusion
The appellant in this case should receive its attorney fees pursuant to the private attorney general doctrine. It has incurred a substantial economic burden from its actions, and because of the equitable nature of its suit, it could not hope to recover its fees by an award of damages. Further*127more, the state agencies responsible for protecting the environment from noxious air pollution, the Department of Ecology and the Attorney General's office, would not and did not attempt to shoulder the burden of the appellant by seeking to prevent the excess pollution.
Secondly, protection of the environment from significant quantities of air pollution is a benefit accruing to all people of this state. Securing the atmosphere from this pollution confers as great a benefit to the public as saving the taxpayers' funds. Finally, every person in the state should benefit by the actions of petitioners. Environmental protection, by its very nature, improves the lives of all citizens of this state, and not merely a discrete, isolated group of people.
I would adopt the private attorney general doctrine in this case and award the petitioner its attorney fees.
Pearson and Goodloe, JJ., concur with Dore, J.Reconsideration denied December 9,1986.