(dissenting) — The majority holds that the appointment of Special Assistant Attorney General Ericson satisfies the alternative means requirement of 16 U.S.C. § 2632(b) (Supp. 4, 1980). I disagree.
Congress enacted the Public Utility Regulatory Policies Act of 1978 (PURPA). Title I of PURPA established policies for utilities which sell electricity at the retail level. The purposes of this title are to encourage
1. Conservation of energy supplied by electric and gas utilities;
2. Optimum efficiency in use of facilities and resources by electric utilities; and
3. Establish equitable retail rates for consumers.
PURPA created a federal right of intervention whereby consumers who participate in the procedures are entitled to receive compensation for reasonable attorney fees, expert witness fees, and other reasonable costs incurred in preparation and participation in the case.
This right of compensation can be defeated only if a state or regulatory authority has established an "alternative means" of assuring adequate representation of the persons referenced in subsection (b). 16 U.S.C. § 2632(b) provides:
(b) Alternative means
Compensation shall not be required under subsection (a) of this section if the State, [or] State regulatory authority . . . has provided an alternative means for providing adequate compensation to persons—
(1) who have, or represent, an interest—
(A) which would not otherwise be adequately represented in the proceeding, and
(B) representation of which is necessary for a fair *299determination in the proceeding, and
(2) who are, or represent an interest which is, unable to effectively participate or intervene in the proceeding because such persons cannot afford to pay reasonable attorneys' fees, expert witness fees, and other reasonable costs of preparing for, and participating or intervening in, such proceeding (including fees and costs of obtaining judicial review of such proceeding).
The key to this section is the phrase "adequately represented” in subpart (1)(A). If the state has not provided for adequate representation of the persons referenced in the statute, subsection (b) will not work to defeat PURPA compensation claims.
Here, Donald Ericson, a private attorney, was appointed as special assistant attorney general for the purpose of representing the people of the state of Washington. The sole question then is whether Special Assistant Attorney General Ericson's participation was an "alternative means" as required under PURPA. The authority to hire, for consultation and to testify, is critical to a finding of alternative means.
The majority admits that
effective public participation in utility regulatory proceedings depends largely on the consumer advocate's ability to employ expert witnesses to testify on behalf of residential consumers in utility proceedings. Without technical resources sufficient to match those of the utility companies they oppose, consumer advocates will become little more than nominal representatives of the public interest.
(Citations omitted.) Majority opinion, at 294. The majority then quotes the pertinent statutory provisions, RCW 43.10-.060 and .125, and holds "the special assistant attorney general has sufficient statutory authority to be an appropriate alternate means of representation". Majority opinion, at 295. That holding ignores the issue in this case— whether this special assistant attorney general had actual authority to hire such witnesses. If — as I conclude — he did not, compensation must be granted, since one cannot defeat *300PURPA compensation claims by urging that generally special assistant attorneys general have such authority. Even if the statute is interpreted as allowing a special assistant attorney general to hire expert witnesses, alternative means did not exist unless this special assistant attorney general had authority. Ericson's ability to do so depends on the specific circumstances under which he was appointed, as well as the financing available to hire such witnesses. The clear evidence in this case demonstrates that Ericson could not hire expert witnesses.
First, Special Assistant Attorney General Ericson did not believe he had the authority to hire expert witnesses. His affidavit states:
I was not vested with any authority to and did not retain any outside experts or consultants with respect to the issues raised in the case, nor was I authorized to retain independent staff people to provide assistance in preparing for and participating in the case.
Clerk's Papers, at 343.
Second, he had no authorization to do so. The letter confirming Mr. Ericson's appointment does not state that he could hire witnesses. It provides only that Mr. Ericson will be compensated at $60 per hour and that he would be compensated for "reasonable and necessary out-of-pocket expenses incurred." Exhibit D. No mention is made of expert witness fees.
Also, virtually the entire budget was consumed by the special assistant attorney general fees. Thus, no funds would have been available to hire expert witnesses had Mr. Ericson believed he had the power to do so.
Consequently, I believe the evidence amply illustrates that Ericson could not hire expert witnesses. In addition, I believe the majority's conclusion as to statutory authority is erroneous. Certainly it is contrary to the position taken by this state's Attorney General.
Attorney General Eikenberry's subsequent attempts to have legislation which specifically granted broad powers to these special assistant attorneys general demonstrate this *301point. For instance, the Attorney General, in his remarks before the House Ethics, Law and Justice Committee, explained that because of lack of authority, the lawyers who have been representing the public assigned by his office have "been functioning as lawyers more or less with their hands tied behind their backs." Brief of Appellant, app. A. The Attorney General's response to the problem was to request the introduction of legislation which specifically authorized the Attorney General to specially appoint assistants as may be necessary to fulfill the responsibilities before the Washington Utilities and Transportation Commission in contested cases, hire consultants and employ technical assistants.
In fact, the Attorney General offered the following testimony on behalf of his House Bill 1091:
[T]he guts of the bill is in the proposal that the Legislature take a new tack and give us funding so that we may retain technical consultants who can go in and give our lawyers a backup with the analytical ability that we need to really analyze what's being presented to the Commission. I think, I know that the other witness who has spoken to you would agree that no matter how good the lawyer is, if they don't have the expert witness they can call on to present and help make the record, they're not going to get very far.
(Italics mine.) Brief of Appellant, app. A. Statements of Attorney General Kenneth O. Eikenberry, House Committee on Ethics, Law and Justice, February 9, 1982, 47th Legislature.
Under these circumstances, I cannot agree that Special Assistant Attorney General Ericson had the necessary actual or statutory authority and resources contemplated by PURPA's alternative means requirement. I believe, therefore, the case should be remanded for trial to award attorney fees.
Williams, C.J., and Stafford and Dore, JJ., concur with Rosellini, J.
Reconsideration granted September 30,1983.