Who Needs NSPE Anymore?

By Mark J. Golden, CAE, FASAE

NSPE was formed in 1934 for the express purpose of enacting professional licensure laws in each of the 50 states. Forming an integrated partnership with state organizations, NSPE accomplished that goal by 1947. We picked up the District of Columbia and the US territories by 1960.

Which raises the question: Do we need NSPE anymore? Can’t we just declare victory and go home?

Unfortunately, no. Putting aside for the moment the valuable work that NSPE and its state societies perform to support, promote, and strengthen the license and support the licensed engineer, those basic laws themselves remain in need of vigilant and active defense.

If asked about engineering licensing directly, almost everyone recognizes the importance of the PE. As Congressman Sam Graves put it at a House Committee on Small Business hearing this summer, “the need to protect health and welfare is patently obvious to ensure that … buildings or bridges do not collapse,” and that is accomplished through the licensing of engineers. But that does not prevent the PE from becoming collateral damage to legal, legislative, or regulatory missiles aimed at someone else. And that means that professional engineers, and the public they protect, need NSPE now more than ever.

Exhibit one: The United States Supreme Court’s ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In a 6–3 vote, the court ruled that a state regulatory board made up mostly of members of the regulated profession was not automatically immune from antitrust allegations.

The case itself had nothing to do with engineering, but it has potential ramifications for state engineering boards because many of them are also largely populated by members of the profession. Happily, there are steps state boards can take to ensure that effective enforcement of licensure laws is not in any way impeded by the decision. And NSPE, is leading the charge to address this.

Well, it didn’t take long for opponents of engineering licensure to seize on the Supreme Court action, totally mischaracterizing its substance, and basely arguing that it somehow invalidates state licensure law. Less than three weeks after the court decision was released, some architects in Kansas tried to block consideration of technical corrections to that state’s law. They argued that the entire law had been vacated by the Court’s ruling.

Of course, nothing could be further from the case. The issue addressed by the Supreme Court was narrowly limited to whether a state licensing board, made up of market participants, is automatically immune from antitrust law.

Even the Wall Street Journal, which is hardly a champion of regulation, offered a clear-eyed assessment of the actual impact of the Supreme Court ruling, and the steps boards can take to protect themselves from a flood of baseless challenges to their actions to protect the public health, safety, and welfare. “States may react to the new ruling quickly,” the Journal reported, “perhaps by trying to place [or, more accurately return] occupational licensing outside the reach of the Sherman Act. Fortunately, the changes that states must enact to immunize boards from litigation will make regulation more transparent and potentially foster more competition among professionals.” The Journal identified three options:

  • Modify the composition of their licensing boards;
  • Increase or make more explicit the state’s active supervision of licensing board activities; or even,
  • Do nothing. “Professional regulations addressing legitimate health and safety risks in a reasonable manner will pass muster with the Sherman Act.”

So, the Supreme Court action hardly meant the end of licensure as we know it. Nonetheless, but for our vigilance, it could have been used (or abused) to severely undermine the PE license.

I wish it ended there. A more direct assault has emerged in state legislatures. The American Legislative Exchange Council, a membership association for state lawmakers, has drafted and is promoting a model bill, called “The Occupational Licensing Relief and Job Creation Act.” While this proposal is not directly targeted at the licensing of engineers, the PE could again become collateral damage in such an aggressive and broad-stroke anti-licensing campaign, just as it was in the North Carolina Dental Board case.

Bills based on this model have already been introduced in Arkansas, Iowa, and Minnesota. NSPE is working with its state affiliates to respond to these bills and prevent this well-intentioned but poorly executed campaign by ALEC to undermine the PE.

And there are more subtle reasons the licensed engineer, regardless of discipline or specialty, still needs NSPE.

NSPE works closely with the entire community of technical societies and engineering associations. We share many, many issues in common with them, and work very well together to everyone’s benefit. But at a recent meeting of leaders from more than two dozen engineering societies who are involved in the National Council of Examiners for Engineering and Surveying, I noted in listening to the other society reports that the overwhelming majority were at best neutral on industrial exemptions from engineering licensing requirements. If they thought about the issue at all, most support preserving and expanding industrial exemptions.

All of this underlines the importance of NSPE remaining diligent and active on licensing issues. If we do not continue to speak up for the integrity of the professional engineering license, no one else seems willing to do so.

Published May 22, 2015 by Mark J. Golden, CAE, FASAE

Filed under: Support, promote, and strengthen the license, valuable work of NSPE and state societies,

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