ROSELLINI, J. (concurring in part; dissenting in part)

I heartily concur with the last paragraph of the majority opinion. Since the appellants in this action introduced no evidence whatsoever upon the question of the adequacy of the respondents' environmental impact statement, but relied entirely on a federal district court judge's finding in another action involving another segment of the highway, we would be perverse indeed were we to say that the evidence does not support the trial court's finding.

I also agree that the protection of man's environment is a matter of great and proper public concern, and that the legislature which is the branch of government designated in the constitution to provide solutions to social and economic problems, has enacted laws upon this subject, which I will mention later. All of those have provisions for judicial review, save and except the environmental policy act.

I do not, however, agree with the conclusion of the majority that the trial court was correct in deciding to take jurisdiction of this action. Judicial review of the administrative proceeding involved, at the instance of persons standing in the position of the appellants, is not authorized by any statute or any doctrine of common law, and there is no suggestion that it is mandated by any provision of the state or federal constitutions. Whether wisely and properly or not, this court has tended in recent years to expand its reviewing power over the discretionary acts of agencies of other branches of government, but the most liberal rule that we have yet evolved is not broad enough to tolerate this lawsuit.

If the legislature had thought it wise to allow interested citizens to challenge governmental actions on the ground that the procedures prescribed in the policy act had not been followed, it could have done so in plain ordinary language, and a person reading the act would know what his rights were. It could also have extended to the courts the kindness of defining some of its terms. It could have explained what it meant by the phrase "major action significantly affecting the environment," and it could have laid down some criteria for judicial review of the "adequacy" of an environmental impact statement. The 1974 amendment indicates a legislative intent to assign these problems to the scrutiny of the Department of Ecology rather than the courts.

The courts, however, and particularly the federal courts, which one must assume are not so overburdened with justiciable controversies that they cannot find ample time to acquaint themselves with the environmental sciences and the laws of aesthetics, have plunged without apparent anxiety into those murky waters which the legislative toe was loath to test. The majority today takes its plunge with a great exuberant splash of dictum, the spray from which has left muddied and besmirched some fine old judicial principles which I propose to mention herein.

Contrary to the statement contained in the majority opinion, in considering the right of the appellants to bring this action, the trial court did not seek to "balance the public interest in the outcome of the suit against the harm caused by delay in bringing the suit." It simply held as a matter of law that, because the appellants were disturbed by the noise and noxious fumes from the existing highway, they could challenge the administrative procedure involved in this case. That holding is not supported by any statute or case law of this state, and I would affirm the judgment of dismissal upon this ground, never touching that sticky cactus, the "adequacy" question.

The majority acknowledges the rule to be that objections or questions which have not been raised or urged in the proceedings before the administrative body or agency will not be considered by the court on review of the order of such agency or body. State ex rel. Northeast Transp. Co. v. Abel, 10 Wn.2d 349, 116 P.2d 522 (1941) is cited. 73 C.J.S. Public Administrative Bodies Procedure § 177 (1951) states it to be the general rule.

The appellants did not object to the failure to administer oaths to those members of the public who spoke at the hearing, expressing their opinions and objections. Most if not all of these were addressed to the necessity or desirability of the highway facility, its location, and its proposed design. This omission was deliberate on the part of the Highway Commission, it admits, its purpose being to avoid the intimidating effect that the administration of an oath might have had upon persons wishing to speak. This procedure evidently met with the approval of the appellants and all others present, since none of them voiced any objection to it.

Furthermore, neither the appellants nor any other person ventured the opinion that the hearing was premature or unauthorized because an environmental impact statement which the department had previously prepared in an attempt to conform with the requirements of federal law, was inadequate. Nor was any objection of any kind made to the adequacy of the statement, either during the hearing or before the findings and order were entered. Therefore, under the rule above cited and followed by the majority with respect to objections to the failure to administer oaths, the question whether the Commission had before it an adequate environmental impact statement was never properly raised or brought before the Commission and cannot be considered on review.

Since the appeal is rested upon allegations of error with respect to these two questions, there is nothing before us for consideration if we apply the principles of judicial review in a consistent manner. Consequently, upon this ground alone the judgment of the Superior Court should be affirmed.

Furthermore, even if the appellants had brought these questions to the attention of the Commission and thus given it a chance to correct the defects, the plaintiffs would still lack standing to question the propriety of the statutory proceeding which the trial court was asked to review in this action. In my opinion, the holding of that court that the writ of certiorari was available to the plaintiff was in error.

Nowhere in our cases, in the federal cases, in the constitution of this state or the United States, or in any statute can I find authority for the courts of this state to entertain an action to review a limited access hearing at the instance of persons in the plaintiffs' situation.

The majority correctly acknowledges that the appellants are not abutting owners, as that term is used in RCW 47.52.133, and therefore are not entitled to obtain a statutory review of the findings and order of the Highway Commission pertaining to the establishment of the highway as a limited access facility. See Deaconess Hosp. v. State Highway Comm'n, 66 Wn.2d 378, 403 P.2d 54 (1965), and cases cited therein.

The limited access hearing which was held here concerned an existing highway, already established and designed. A "limited access plan" is just what its name declares — a plan for limitation of access to a street or highway. The persons affected by the limiting of access are entitled to notice of presentation of the plan. These persons are those whose property abuts upon the street or highway and who will lose currently existing access from their property to the adjoining highway.

The order of hearing dated May 13, 1971, gave notice of a limited access hearing (not a "design" hearing, as the majority would suggest). The order of the highway department entered subsequent to the hearing showed that it pertained to a "section of State Route 90 over an existing state highway in King County. . . designated as a limited access highway of the fully controlled type."

RCW 47.52.074 provides that unless an appeal is taken as provided therein, the order shall become final as to all abutting owners in 30 days. If the order is made final as to abutting owners, who are expressly given a right of appeal, how can nonabutting owners, who have no rights to appeal, claim that it is not final as to them. Where an administrative determination is made final by statute, the courts have no power to review it, except for arbitrary and capricious action. Wyatt v. University of Washington, 84 Wn.2d 1, 523 P.2d 910 (1974).

The appellants have not questioned the constitutional power of the legislature to enact this statute and to exclude them from the classes which are given the right to question the propriety of the proceedings taken pursuant thereto.

The majority nevertheless holds that the appellants may enter the court by another door, that of "certiorari." The common-law writ of certiorari is termed a writ of review in RCW 7.16.040, which makes the writ available only where the inferior tribunal is exercising judicial functions, in accord with the common-law rule, Sweeney v. County Comm'rs, 43 Wn. 138, 86 P. 200 (1906). Both tacitly concede that, as to the appellants, the function of the Highway Commission was neither judicial nor quasi-judicial. Nevertheless, the majority finds that the appellants can maintain this action. It is not clear whether the right accorded them arises out of statute or the common law. I think it finds support in neither.

The appellants' only claim of damage is that their property rights or interests are "affected" by the noise and noxious fumes emanating from the highway as it presently exists and as it will exist if the proposed improvements are ever accomplished. This is not an inverse condemnation action, and no damages were alleged or proved.

It requires considerable agility to leap from the acceptance of the appellants' assertion that they are affected by the noises and fumes of automobiles on the highway, to a conclusion that they can maintain an action of this kind. It must be kept in mind that the plaintiffs seek review of an administrative hearing — a hearing to which they were not parties, although they, as members of the public, were invited to attend and to express their views if they chose. They would have no right to enjoin the construction of the highway, even if the noise levels and noxious fumes were so great as to constitute a common-law nuisance. Deaconess Hosp. v. State Highway Comm'n, supra. If they cannot maintain an injunction action based upon their alleged damage, which is of a kind which is shared alike by all city dwellers and contributed by all automobile users (a class from which the appellants have not avowedly disassociated themselves), how much less should they be heard to question the regularity of a proceeding affecting only one aspect of that highway, a proceeding to which they were not parties and in which no constitutional, statutory or common-law right of theirs was affected.

The general rule is that no one has a vested right to be protected against consequential injuries arising from a proper exercise of rights by others. This rule is especially applicable to injuries resulting from the exercise of public powers. Citizens Against Mandatory Bussing v. Palmason, 80 Wn.2d 445, 495 P.2d 657, 50 A.L.R.2d 1076 (1972).

The legislature has expressly authorized the establishment of this highway (RCW 47.17.140), and it is not suggested that it lacked the constitutional power to do so. It has also authorized the limiting of access. It was a plan drawn pursuant to this authority which the Commission had under consideration at the hearing attended by the appellants. They do not object to the limited access plan. In fact, they do not complain that the findings were unsupported by evidence or that the order deprived them of any right. They complain only that the procedure was irregular. In a word, they object to the form and not to the substance. To my mind, this fact alone shows that the purpose of this action is not to complain of the denial of any substantial right, but to delay and obstruct the construction of a state facility of which the appellants disapprove. The courts should not allow their processes to be used for such purposes.

Since the legislature has power to formulate the conditions under which resort to the courts may be had, the persons accorded a right to obtain review of administrative decisions and orders are to be ascertained from the terms of the statute providing therefor. 73 C.J.S. Public Administrative Bodies Procedure § 176 (1951). As stated in 2 Am.Jur.2d Administrative Law § 556 (1962), constitutional questions aside, it is for the legislature to determine how the rights which it creates shall be enforced. An exception to this rule is the rare case where the legislature has clearly expressed the intent to create a right; the defendant is interfering with the exercise of that right, and there is no statutory remedy. See Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965), for example. In Operating Eng'rs Local 286 v. Sand Point Country Club, 83 Wn.2d 498, 519 P.2d 985 (1974), we restricted the application of that rule to cases where no affirmative duty is placed upon the defendant.

The only right which is given to the appellants under RCW 47.52 is the right to appear and be heard. It is not claimed that this right was denied them.

The majority can point to no provision of RCW 47.04.110-.130 or RCW 43.21C which purports to confer upon private citizens a right to obtain judicial review of administrative proceedings.

RCW 47.04.110-.130 declares it to be the public policy of the state that, in the location, design and construction of state highways, every effort should be made to minimize and eliminate effects which are adverse to the environment. It requires the consideration of such factors as dislocation of people, residences, and businesses and air and water pollution. An environmental impact statement is to be prepared by the Department of Highways prior to holding the first public hearing relating to location or design of the highway after August 9, 1971. This statement is to be reviewed by the Department of Ecology, and copies of its review statement are to be transmitted to the Department of Highways, any interested citizens, and representatives of the news media prior to the hearing.

RCW 43.21C.010 states:

The purposes of this chapter are: (1) To declare a state policy which will encourage productive and enjoyable harmony between man and his environment; (2) to promote efforts which will prevent or eliminate damage to the environment and biosphere; (3) and stimulate the health and welfare of man; and (4) to enrich the understanding of the ecological systems and natural resources important to the state and nation.

In RCW 43.21C.020 the legislature recognizes man's dependency upon his environment and also recognizes that man's activities have an effect upon his environment. It declares that it is the continuing policy of the state, in cooperation with federal and local governments, and other concerned public and private organizations, to use all practical means and measures, including financial and technical assistance in a manner calculated to:

(a) Foster and promote the general welfare; (b) to create and maintain conditions under which man and nature can exist in productive harmony; and (c) fulfill the social, economic, and other requirements of present and future generations of Washington citizens.

Paragraph (2) provides:

In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may;

(a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(b) Assure for all people of Washington safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(d) Preserve important historic, cultural, and natural aspects of our national heritage;

(e) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(f) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

The third paragraph states:

The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

In RCW 43.21C.030 guidelines are set up which all branches of state government are authorized and directed to follow, to the fullest extent possible. These include the factors which are to be considered in drawing an environmental impact statement, which is to be included in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment.

In RCW 43.21C.040, all branches of state government are directed to examine their own statutory authority, regulations, policies and procedures to determine whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of the act and to propose to the Governor such measures as might be necessary to bring their authority and policies in conformance with the act.

The next paragraph, RCW 43.21C.050, provides that specific statutory obligations shall not be affected by the act, and 43.21C.060 declares that the policies and goals set forth in that chapter are supplementary to those set forth in existing authorizations of all branches of government of the state. Supplementary means "in addition to," not "repealing of." See Webster's Third New International Dictionary 2297 (1968).

The sections of the federal act ( 42 U.S.C. § 4333, 4334, 4335) from which these last three provisions were copied have been interpreted by the United States Supreme Court in United States v. SCRAP, 412 U.S. 669, 37 L.Ed.2d 254, 93 S.Ct. 2405 (1973), and that court has held that it was not the intent of the Congress, in enacting the National Environmental Policy Act of 1969, to repeal by implication any other act. The court held in that case that, while the plaintiffs who alleged that they were damaged in fact had standing under section 10 of the Federal Administrative Procedure Act, 5 U.S.C. § 702, the court had no power to enjoin the ratemaking activity of which the plaintiffs complained, because the power had been denied the courts in another act, section 15(7) of the Interstate Commerce Act, 49 U.S.C. § 15(7). Applying the same interpretation to our act, as the majority indicates this court should do, it was not the intention of the legislature, in enacting the State Environmental Policy Act of 1971, to repeal that provision of RCW 47.52.137 which declares that the determination of the highway authority in a limited access hearing shall become final 30 days after copies are mailed as provided therein, unless a review is taken, as provided therein. Since only abutting owners may seek review under that act, United States v. SCRAP, supra, compels the conclusion that this action should not be entertained.

Insofar as I have been able to ascertain, the United States Supreme Court has not to date issued an opinion as to what constitutes an "adequate" environmental impact statement or held that any agency action should be enjoined because such a statement had not been prepared.

Examining these two acts, I can find expressed in them no intent to provide for judicial review of governmental actions taken pursuant thereto.

The acts set forth certain policies and goals and provide for certain procedures to implement them. The motive for the legislation — recognition of the right of every person to a healthful environment and the duty of every person to contribute to it — is recited. As we recently reaffirmed in Operating Eng'rs Local 286 v. Sand Point Country Club, 83 Wn.2d 498, 519 P.2d 985 (1974), policy statements, including statements regarding legislative motives, do not constitute substantive law and create no rights.

If there were in either statute a declaration that an action taken without compliance with its procedures should be void, perhaps the court could find an implicit provision for judicial review, but the acts contain no such language.

There is in these acts no express authorization of judicial proceedings. Other contemporaneous acts pertaining to environmental controls do contain such provisions. See Shoreline Management Act of 1971, RCW 90.58, particularly 90.58.120 and .180; Department of Ecology Act, RCW 43.21A, particularly 43.21A.070 (making the Administrative Procedure Act, RCW 34.04, applicable to review of decisions by the director); and the Pollution Control Hearings Board act, RCW 43.21B, particularly 43.21B.180 (also involving RCW 34.04).

Applying our established rule of statutory construction, that the intent of the legislature must be derived from the language of an act ( Farm Supply Distribs., Inc. v. State Util. Transp. Comm'n, 83 Wn.2d 446, 518 P.2d 1237 (1974); Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965)), the conclusion must be that the legislature did not intend to provide for judicial intervention in the procedures provided in either of these acts. It is evident that the legislature relied upon the good faith of the officials and employees of the various governmental branches and agencies and the stimulating effect of their interaction to effect its purposes, and in the event that this reliance might prove unjustified, upon the adequacy of existing remedies available to parties whose judicially cognizable rights might be affected.

The majority is apparently convinced that the legislature should have provided that any interested citizen or group of citizens could obtain judicial review of administrative actions taken pursuant to or in disregard of these provisions. If the legislature thought that such review should be provided for, it inadvertently omitted any language expressing that intent. Since we are not a legislative body, it is our settled rule that we cannot and will not read into a statute anything which we may conceive that the legislature has unintentionally left out. Anderson v. Seattle, 78 Wn.2d 201, 471 P.2d 87 (1970); Department of Labor Indus. v. Cook, 44 Wn.2d 671, 269 P.2d 962 (1954); Maryland Cas. Co. v. Tacoma, 199 Wn. 384, 92 P.2d 203 (1939); Seattle Ass'n of Credit Men v. General Motors Acceptance Corp., 188 Wn. 635, 63 P.2d 359 (1936).

This court has in fact given force to the provisions of RCW 43.21C requiring the consideration of an environmental impact statement in the decisionmaking process. In each of our prior cases, some party had standing to bring the action under a statute or common-law principle. In Stempel v. Department of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973), the issuance of a water use permit was reviewed in an action properly brought under RCW 34.04 and the applicability of the State Environmental Policy Act of 1971 was considered. (There is no contention in this case that RCW 34.04 gives the appellants a right of review.) In Eastlake Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 513 P.2d 36 (1973), an injunction action was entertained where the Attorney General and the Department of Ecology were parties whose standing was not challenged. We noted that had all of the plaintiffs been private parties, a question of standing would have been presented. As I read all of the acts which I have cited and which are designed to facilitate the protection of the environment, it was the legislative intent to make the Department of Ecology the chief representative of the public interest in the protection of the environment, and to place upon it the primary responsibility for judging the adequacy of environmental impact statements. If the department failed to do its duty in that regard, conceivably a mandamus action might lie, but that is not this case. See State ex rel. Lemon v. Langlie, 45 Wn.2d 82, 273 P.2d 464 (1954); State ex rel. Stephens v. Odell, 61 Wn.2d 476, 378 P.2d 932 (1963).

Another recent case in which we found it appropriate to apply the provisions of RCW 43.21C to acts of a governmental agency was Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973). It was there held that Katherine Partlow Draham and the Cooper's Point Water Association had an interest in that action as intervenors, under CR 24(a) (because they were threatened with diminution in the value of their property) which entitled them to argue that a zoning decision should be sustained.

Since zoning ordinances determine the uses to which privately-owned land may be put, and unless they are conceived and administered with fairness to all they may result in the damaging of one man's property while giving unfair advantage to another, this court, in common with most other appellate courts, has been vigilant to see that judicial remedies are available where they are not provided in the ordinance itself.

Among cases applying this principle are Pierce v. King County, 62 Wn.2d 324, 382 P.2d 628 (1963), and Anderson v. Island County, 81 Wn.2d 312, 501 P.2d 594 (1972), in both of which an extraordinary use of the writ of certiorari was allowed.

In NAACP v. Button, 371 U.S. 415, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963), cited in Loveless v. Yantis, supra, it was held that an organization may represent its members in an action brought for the protection of their constitutional rights, where those rights cannot be effectively asserted in individual actions. The constitutional rights which were denied the members of the National Association for the Advancement of Colored People in that case were civil rights. The holding of that case appears to me to be eminently sound, since the courts are always — or should always be — diligent in providing a remedy where constitutional rights are denied. Arguably such rights were involved in Loveless v. Yantis, supra, since zoning laws, if not properly administered, may result in a deprivation of property without due process of law. No constitutional right of any kind is claimed to have been violated in this case.

Sierra Club v. Morton, 405 U.S. 727, 31 L.Ed.2d 636, 92 S.Ct. 1361 (1972), also cited in Loveless v. Yantis, supra, was an action brought by an organization whose members alleged that a proposed ski resort development and a road leading to it would damage the environment. The United States Supreme Court held that they did not have standing to bring the action under the Federal Administrative Procedure Act, section 10 ( 5 U.S.C. § 702), because they did not allege that they themselves were users of the area in question and would be injured in fact by the development.

In a subsequent case, United States v. SCRAP, supra, the United States Supreme Court held that the citizens' group which brought that action under the Federal Administrative Procedure Act had shown that its members would be injured in fact by a proposed ratemaking decision.

The language of the Federal Administrative Procedure Act is broad in its authorization of actions. It provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

5 U.S.C. § 702.

Injunctions are also authorized by the act, which has been liberally construed, the federal courts appearing sometimes to presume that federal agencies are arbitrary and capricious. I am not aware that this court has previously entertained such a view of state administrative agencies. On the contrary, our approach has been that their proceedings are entitled to a presumption of regularity. Farrell v. Seattle, 75 Wn.2d 540, 452 P.2d 965 (1969); Malaga School Dist. 115 v. Kinkade, 47 Wn.2d 516, 288 P.2d 467 (1955). In any event, our Administrative Procedure Act is not open to the interpretation which the federal courts have placed upon the Federal Administrative Procedure Act.

Our own Administrative Procedure Act, RCW 34.04, gives no right of action to persons adversely affected, but only to persons "aggrieved"; it does not authorize injunctions; it confines the reviewing power to contested cases; and it limits the time in which review can be sought. But assuming the two acts are open to the same construction, this case was not brought under the Administrative Procedure Act. Consequently, Sierra Club v. Morton, supra, is not authority for the proposition that the appellants in this action had standing to sue.

The Yantis case itself is not authority for the proposition that persons who merely alleged that they or their property will be affected by the consequential results of an agency decision and do not show that there has been a violation of any right of theirs which is protected by the constitution, by statute or by the common law, can obtain judicial review of the decision or the hearing which preceded it.

If, as the majority holds, the appellants have standing to bring this action, then any citizen may obtain judicial review of any administrative proceeding involving a decision which affects him, however indirectly. Any person living within hearing and smelling distance of any street or highway has an interest in the decision whether to construct that highway, how to design it, and whether to limit access to it, equal to that of the plaintiffs in this action. Persons living near parks, schools, public auditoriums and sports arenas may, as the appellants do here, consider themselves adversely affected by noise and fumes emanating from automobile traffic, and other activities associated with such places. If the appellants have a right to obtain judicial intervention in the decisionmaking process, all others have a similar right.

The problem, of course, is that all of these places and facilities are beneficial to those who use them; and, presumably, if they are authorized by law, they are beneficial to the majority of the persons affected by them. It is not this court's function to weigh the benefits and burdens which may result from the construction or maintenance of such a facility or to determine whether it is necessary for the public health, safety or general welfare. It must be assumed that the majority is willing to bear the discomfort and annoyance that accompany those activities which they, through their duly chosen representatives, have authorized; and the courts should not allow their processes to be used to hamper or obstruct them, unless it is shown that some judicially cognizable right has been invaded.

The majority of this court says that the appellants have such a right, because RCW 43.21A recognizes that every person has a right to a healthful environment.

Before examining the theory that RCW 43.21C gives the plaintiffs a right to bring this action, I think that the majority's uncritical acceptance of the notion that that act applies at all should be examined. The decision that RCW 43.21C was applicable to the function of the Commission in entering its findings and order is grounded on nothing more than the Commission's concession, in its brief, that the statute applied to its action. Turning to that brief, I find one paragraph on the subject. It reads as follows:

SEPA, on the other hand, was clearly applicable to the Highway Commission's Findings and Order. The Commission's action occurred after the effective date of SEPA, and Roanoke Associates [ Eastlake Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 513 P.2d 36 (1973)] indicates that the adoption of the limited access plan must be regarded as an action "significantly affecting the quality of the environment." However, the facts of this case and the relevant legal principles, as discussed below, indicate that the Highway Commission has fully complied with the requirements of that act.

This is a very liberal concession made by the Commission, or rather, it would appear, by the Attorney General. It is, of course, a construction not of the act itself but of a holding of this court. I do not understand the Roanoke case to hold that every governmental action is subject to the requirements of RCW 43.21C.

In my opinion, the limited access proceeding contemplated under the statute could hardly be considered a major action which significantly affects the quality of the environment. The decision to construct and the adoption of a location and design are actions of that type, for they deal with the location of the highway, the acquisition of property and, often, the removal and destruction of homes, businesses and recreational and scenic places. It is not contended that decisions on these matters were made as a result of the limited access hearing.

I do not think that this court should resolve serious questions of statutory interpretation by accepting the concessions of a party or his attorney, whether the party be a state agency or a private individual.

In any event, the findings and order have not been challenged in this action, so the question whether RCW 43.21C applied to them is totally irrelevant. Nevertheless, since the majority (including the signers of the concurring opinion) have chosen to make it an issue, I will present my views on that subject.

In approaching the interpretation of an ambiguous statute, we have said that, although the construction placed upon it by the Attorney General is entitled to considerable weight, his opinion is not controlling and the court remains the final authority on the proper construction. Davis v. King County, 77 Wn.2d 930, 468 P.2d 679 (1970). Administrative construction is entitled to great weight, but likewise is not binding. Pringle v. State, 77 Wn.2d 569, 464 P.2d 425 (1970).

Unlike the evaluation of environmental impact statements, statutory construction is a matter within the peculiar expertise of courts, presumably, and when such a question comes before the court, we should give it our serious and critical attention. There are rules of construction available to guide the court, rules which we often utilize. One of these is that statutes in pari materia should be read together. As we said in Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968), where two statutes relate to the same subject matter, the court will, in its attempt to ascertain the legislative purpose, read the sections as constituting one law to the end that a harmonious total scheme which maintains the integrity of both is derived. It should be obvious that RCW 43.21C and 47.04.110-.130 both relate to agency consideration of environmental factors. They are in pari materia.

It is also apparent that RCW 43.21C is a general statute, applying to governmental branches and agencies generally, while RCW 47.04.110-.130 is a special statute, applying to the Highway Commission specifically. Another rule of statutory construction is that the specific controls the general. As stated in State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960), where a general statute and a subsequent special statute relate to the same subjects, the provisions of the special statute must prevail. Here the general statute, RCW 43.21C, was enacted in 1971. RCW 47.04.110-.130 was enacted in 1971. It applies specifically to the Highway Commission and must prevail if there is any conflict between the two.

I think if the two acts are read together, they are in harmony and the legislative intent is apparent. RCW 43.21C authorizes and directs that an environmental impact statement be prepared before every governmental action which significantly affects the quality of the environment. This act is certainly broad enough to cover actions of the Department of Highways so the legislature must have had some purpose in enacting RCW 47.04-.110-.130. What could that purpose have been? The only significant difference between the provisions of these sections and their corresponding provisions of the State Environmental Policy Act of 1971 is that they specify the actions of the Commission which are to be preceded by the preparation of environmental impact statements. Such statements must be prepared before any hearing relating to location or design, occurring after August 9, 1971. There is no requirement that the preparation of such a statement precede the entering of findings and order after a hearing which took place before the effective date of the act.

Expressio unius est exclusio alterius. There is no room left for judicial interpretation of the words "major governmental action" as applied to the Highway Commission, unless the terms "location and design" are ambiguous. The legislature has used those terms in RCW 47.16.220. It has referred to federal statutes and rules which expressly require such hearings. RCW 47.04.070. See note 9, supra. The limited access statute, RCW 47.52, does not describe the hearing provided for therein as either a location hearing or a design hearing and it would seem that the purpose of such a hearing is not to decide upon either of these matters but rather to give to persons whose access will be affected a chance to object. In other words, the legislation was inspired by a concern for property rights. State ex rel. Sternoff v. Superior Court, 52 Wn.2d 282, 325 P.2d 300 (1958).

It appears that the persons who were allowed to speak at the hearing turned the occasion into a de facto "location and design hearing," but the remarks made by witnesses could not affect the statutory duties of the respondents. The hearing was what the respondents announced it was — a limited access hearing.

But assuming it was a "design hearing" within the meaning of the statute, it is still that act which governs the Highway Commission's duties with regard to environmental impact statements and there is imposed upon it no duty to prepare such a statement before the hearing which the court is reviewing in this action, or before the findings and order were entered.

Had the legislature seen fit, it could have required the Highway Commission to prepare and consider a statement before reaching a decision on any matter relating to location or design, in language suited to that purpose. The fact that it omitted to do so seems harmless enough, under the circumstances of this case. The Commission was required by federal law to prepare and have before it an environmental impact statement, and the adequacy of that statement is now before the federal courts for review upon a petition for rehearing. That should be judicial review enough.

I would conclude that an environmental impact statement was not required of the respondents under state law; but assuming I am wrong on that and that there is somewhere in the law a rationale to justify the majority's assumption that such a statement was required, I nevertheless do not believe it was the legislature's intent, when it "recognized" the right of every person to a healthful environment, to confer upon persons in the position of the appellants a right to obtain review of limited access hearings.

The majority, acknowledging that the function of the Commission was not of a judicial nature, and therefore not one which would ordinarily be reviewable, finds that the appellants are nevertheless entitled to the writ of certiorari under our holdings in State ex rel. Hood v. State Personnel Bd., 82 Wn.2d 396, 511 P.2d 52 (1973); State ex rel. DuPont-Fort Lewis School Dist. 7 v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963); and State ex rel. Cosmopolis School Dist. 99 v. Bruno, 59 Wn.2d 366, 367 P.2d 995 (1962).

In the first cited case, we refused to review a determination of the defendant board, applying the rule which this court enunciated in the second cited case, to rationalize its departure in the cited Cosmopolis case, from the established principle that it will review only actions of a judicial or quasi-judicial nature. The rule evolved and most recently stated in the Hood case is that we will depart from that principle only when an administrative action, though nonjudicial in nature, violates some fundamental right of the petitioner.

Since it is often difficult to make distinctions between quasi-judicial and legislative or discretionary actions, it may be that we have unconsciously hit upon a criterion for determining the nature of an administrative action where that question is in doubt. If it violates a fundamental right, it must have at least some aspects of a judicial function — that is, a right-determining function.

The right of the plaintiffs in State ex rel. Cosmopolis School Dist. 99 v. Bruno, supra, in which I dissented, was said to be in the nature of a property right, as I understand the opinion. I think it is questionable whether there was such a right involved, particularly in view of the ultimate decision which we rendered in the case, after a remand and a second appeal. An examination of State ex rel. Cosmopolis School Dist. 99 v. Bruno, 61 Wn.2d 461, 378 P.2d 691 (1963), will show that the plaintiffs' case was devoid of merit.

In State ex rel. Hood v. State Personnel Bd., supra, there is dictum to the effect that a fundamental right may be a right created by statute. It would seem to me, upon further thought, that a fundamental right must be one recognized in the fundamental law. The United States Supreme Court has adopted this view. But assuming for the moment that a right created by statute can be deemed fundamental, it does not follow that RCW 43.21C creates a right which entitles the appellants to bring an action of this kind. The statute implements the right which it recognizes, but it does not include in that implementation a right to judicial review of agency actions.

The majority takes the right "recognized" in RCW 43.21C and gives it an extra-statutory remedy presumably reserved for rights that are indeed fundamental. It appears to the majority to be only a short, logical jump from the recognition of a right to a healthful environment to the conclusion that the limited access hearing held by the Highway Commission violated that right. It seems to me that the worst that can be said of this hearing and the decision which followed is that they may possibly but will not necessarily have an adverse effect on the environment. For aught that the appellants show, the construction of the proposed highway will have no adverse effect at all upon the environment, and the respondents' uncontroverted evidence is that it will be beneficial. But be that as it may, I do not believe the right to a healthful environment is the kind of right this court had in mind or should have had in mind when it relaxed its rule that we review only proceedings of a judicial nature. If the rule foreclosing judicial review of nonjudicial decisions is to be relaxed at all, it should be relaxed only where the plaintiff shows a violation of some right which enjoys constitutional protection.

The United States Supreme Court has said that a fundamental right, as that court has used the term in giving special protection to such rights, is a right which is found, either express or implied, in the constitution. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278 (1973), affirming that this was the court's position in Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969). The court pointed out that it is not its function to create fundamental rights.

Neither is it the function of the state legislature, nor did the legislature purport to create a right in this case. The "fundamental right" which the legislature recognized in RCW 43.21C may be a "natural right," protected by Divine law. But the courts can enforce it only to the extent that it is protected by a constitution, statute, or doctrine of common law. It is fundamental only insofar as the basic law provides protection for it. I can find in neither constitution any mention of such a right.

Considering the abundance of nature which was spread out before our forebears when the constitutions were drafted, it is most unlikely that any of them felt that he need fear for the health of his environment. Nor has a belated recognition of the importance of this element of life found its way into any constitutional amendment.

I must conclude that, if there is indeed a right to a healthful environment, it is not one protected by the state or federal constitution. But the courts have declared that the legislature has an inherent power to enact necessary laws to protect the public health. Kaul v. Chehalis, 45 Wn.2d 616, 277 P.2d 352 (1954); State v. Boren, 36 Wn.2d 522, 219 P.2d 566, 20 A.L.R.2d 798 (1950). The people no doubt have a right to expect the legislature to pass needed laws for the protection of the environment; and I would interpret the language of the State Environmental Policy Act of 1971 as a recognition of this reasonable expectation of the people. However, it is not the function of this court to order the legislature to pass laws, any more than it is its function to supply legislative omissions.

The right to a healthful environment is a legislatively cognizable right. It is judicially cognizable only to the extent that the legislature has seen fit to enact laws for the protection of that environment and to provide a judicial remedy for their enforcement and to the extent that the common law recognizes such rights, as in the law of nuisance.

Both federal and state legislatures have enacted many measures to protect the public health. The environmental acts are among them. But to find the means adopted for that protection and the remedies authorized or prescribed, we must look to the provisions of the statutes. I have searched there in vain for any right given to neighboring property owners other than abutting owners, or to organizations which they may form, to object to the conduct of limited access hearings, or to appeal from or obtain in any manner judicial review of such proceedings.

Assuming then that this court has taken the position that a petitioner can obtain review of a nonjudicial administrative hearing to which he was not a party, if he shows that one of his fundamental rights was violated, the appellants have not established a violation of such a right.

Indeed, if the appellants could claim such a fundamental right, they could attack the constitutionality of the limited access statute, upon the ground that it denies them that right. This they have not done, quite understandably.

There appears to be underlying the majority's decision some vague feeling that the public interest requires it to entertain this action. I can perceive no justification for such an assumption. The public interest has not been overlooked in the limited access statute. Local governing bodies are given extensive and detailed rights in the planning and decisionmaking process. Presumably they, as well as the legislature and the Highway Commission, are concerned for the welfare of the public. If they aren't, that is a matter to be corrected through other processes. The appellants do not represent a definable class, and are unable to meet the requirements of a class action under CR 23. Much less can they claim that they are authorized to or can adequately or properly represent the interests of the public. The majority does not suggest that they do. Since they represent only their own personal points of view and their own claimed interests, I am at a loss to understand why the majority of this court feels that it should abandon all relevant principles of statutory construction and judicial restraint in order to give these parties standing.

If the court is to expand the law of standing, it should do it in a case having some merit and not one which it recognizes to be as frivolous as this one. Why disturb so many precedents when the justice of the case does not require it?

Not only have the appellants failed to show any defect in the proceedings, they have not raised any objection to the decision of the Highway Commission with respect to limiting access on the highway. We should not lose sight of the fact that this was the issue before the Commission at the hearing, and it was a decision to which essentially no remarks of the citizens who spoke at the hearing were directed. This attitude of indifference to the issue before the Commission persists in the briefs and in the opinion of the majority of this court. The question whether access should have been limited, or where or how it should have been limited, is not discussed.

It is my opinion that this court is neither authorized by statute nor equipped by education, experience or native endowment to review the "adequacy" of a document so dependent upon expertise as an environmental impact statement. We can look to see if serious consideration is given to all the matters set forth in the statute, but the decision whether the consideration given is "adequate" belongs with some other agency of government. I think the legislature intended that the Department of Ecology should have the responsibility for such decisions. I am satisfied it did not intend to rest it in the courts. Had it expressly done so, I would expect the court to view it as an unconstitutional attempt to impose upon the court a nonjudicial function. See In re Elliott, 74 Wn.2d 600, 446 P.2d 347 (1968). Also, if this court is going to assume the task of reviewing agency consideration of environmental factors, it seems to me that it should look to the substance rather than attach controlling significance to the form. The question should be — not, Did the agency have before it an "adequate environmental impact statement"? — but rather, Did the agency have before it sufficient evidence of the impact on the environment to render an informed judgment? In reviewing such an action, we should require a showing that evidence was obtainable, in the exercise of reasonable diligence, which would have had some probable effect on the decision. We should not expect superhuman performances from other agencies of government just because we ourselves are unfettered by human limitations.

If the majority thinks that the limiting of access has an important effect on the environment, it should advise the respondents what it considers this impact to be, so that they will know how to recognize relevant data when they see it. Of course, this might be said to be embarking upon judicial legislation, but since that is precisely what the majority has undertaken to do in this action, it should at least make the legislation coherent.

Further, the court should offer some guidance to trial courts. It should set forth the circumstances under which persons, whose injuries are consequential and no different from those suffered by the public generally, may obtain review of administrative actions. Is this judicial remedy to be available only in environmental cases, or are there perhaps some other favored areas of the law? We should not be surprised if lower courts assume henceforth that the rule, as laid down by this court, is that any person has standing to bring any action if he has the funds to pay an attorney.

The action of the court today must surely result in that confusion and frustration that generally follows when we discard fundamental principles which have served the administration of justice well and are consistent with and implementative of the will of the people as expressed in their constitution. There the legislative power is lodged in the legislature, with reservation of the power of initiative and referendum (Const. art. 2, § 1) and the judicial power is vested in the courts (Const. art. 4, § 1). The rules governing judicial review and statutory construction have their roots in these provisions and manifest the court's recognition of its constitutional duties and limitations. If we abandon one of them, it should be only because experience has shown that it does not serve its purpose. No such showing has been attempted in this case.

In an opinion written by the author of the majority opinion in this case, this court has recently stated, "We are not a super legislature." Aetna Life Ins. Co. v. Washington Life Disability Ins. Guar. Ass'n, 83 Wn.2d 523, 528, 520 P.2d 162 (1974). In view of the action taken by the court herein, I am afraid a modification has been effected. The statement must now read, "We are a super legislature only when we choose to be."

I would affirm the judgment in accordance with the views expressed herein.

HALE, C.J., and HUNTER and WRIGHT, JJ., concur with ROSELLINI, J.

Petition for rehearing denied December 10, 1974.