NSPE Today: Outlook
NSPE Makes Progress in Campaign Against Exemptions
BY EXECUTIVE DIRECTOR MARK GOLDEN
PE licensing laws were enacted to ensure that the men and women in responsible charge of engineering projects are qualified to carry out that work in a manner that protects the public safety, health, and welfare. In some states, tragic loss of life due to engineering failures was the necessary catalyst for passing such laws. It is impossible to know how many engineering failures were avoided thanks, at least in part, to the licensing requirement that a competent and accountable individual be in charge. Unfortunately, one of the outcomes of the very effectiveness of the PE licensing regime is that it allows the public to grow complacent. Since the enactment of licensing laws began, many states and even federal agencies have added exemptions.
NSPE’s longstanding professional policy on industrial exemptions (Number 173), most recently revised and renewed by the NSPE House of Delegates in September 2015, states, “all engineers who are in responsible charge of the practice of engineering as defined in the NCEES Model Law and Rules in a manner that potentially impacts the public health, safety, and welfare should be required by all state statutes to be licensed professional engineers. NSPE recommends the phasing out of existing industrial exemptions in state licensing laws.” This remains NSPE’s policy today, and something the Society, at the national and state levels, continues to actively pursue.
That emphasized text is important. Unfortunately, the very term “engineering” means different things to different audiences. The clear distinction that the licensing laws make—defining professional practices that, in the interest of protecting the public, warrant being limited to a licensed professional—is often lost on the general public and most policymakers. It is important to understand that this policy does not mean that anything anybody could possibly construe as engineering is covered.
It can be argued (and increasingly is) that our society is over-regulated. But too often, deregulatory zeal leads to unintended consequences. The need for a licensed professional in certain areas of engineering remains as valid today as when licensing laws were first enacted. That need will continue into the future as our infrastructure and technology become more complex. The public is best served when such prudent regulation is applied before a tragedy demonstrates the cost of failing to do so.
Educating legislators and policymakers about these exemptions is never easy, but NSPE continues working diligently on the issue. In September, the Society published a state-by-state summary of licensing law exemptions. The report details the extent of these exemptions and argues that they stand in the way of stronger public protection.
NSPE also has had recent success in gaining recognition for the professional engineer by federal agencies and legislators.
- In just the past six months, at NSPE’s urging, the Environmental Protection Agency has issued two new rules that require a PE. First, the EPA included strong requirements for a PE in its final rule on emissions and compliance related to municipal solid waste landfills. Second, the EPA’s final rule on emission standards in the oil and natural gas sectors asserts a strong, well-reasoned, and well-supported rationale for the need for PEs in responsible charge on all engineering projects, both in an independent third-party capacity as well as in an in-house role.
- In another major victory for professional engineers, NSPE worked with the House Natural Resources Committee to successfully incorporate into federal legislation (H.R. 3843) a provision requiring PEs to prepare and seal engineering reports as part of all permit applications for the cleanup of abandoned mine lands. Abandoned mine lands have been an issue for decades, and the committee passed the bill with unanimous consent.
- After a six-year process, the Department of the Interior’s Bureau of Safety and Environmental Enforcement issued comprehensive safety regulations in response to the Deepwater Horizon blowout disaster in 2010. The final rule requires a PE in cementing and casing situations to examine, review, approve, and certify changes or remedial measures.
These examples clearly show that NSPE’s message about exemptions and the value of licensure is being received in places that haven’t always been open to the PE.
A Brief History
Some have said that the industry exemption was the compromise that had to be made for easing resistance from industry for the enactment of original PE licensing laws, a process that was completed for all states and territories in 1950.
Perhaps inevitably, over time, the exemptions have been refined and, in many cases, expanded. Sometimes exemptions are specifically defined in statutes and regulations. In other cases, their scope is a matter of regulatory interpretation, custom, and practice within a jurisdiction. And while NSPE and its state societies can point to many successes, efforts to eliminate industry and government exemptions always meet with stiff resistance.
In the government sector at the federal level, the US Constitution’s supremacy clause is regarded as preempting state law. As a result, longstanding federal court decisions, including decisions by the US Supreme Court, have held that the federal government is not bound by state licensure laws. As a result, professionals in the federal government, working in all 54 states and territories, are not generally required to follow state licensure laws unless the federal government consents to such requirements. To this end, both the Army Corps of Engineers and the Naval Facilities Engineering Command, to cite just two examples, have longstanding policies requiring PE licensure for higher-level positions within those government agencies.
In addition, while some industrial and manufacturing employers support employees who wish to pursue professional engineering licensure, the vast majority of engineers employed in industry and manufacturing are not encouraged to become PEs.
Obviously, the consequences of exemptions from licensing laws are extremely significant for the engineering profession and the public it serves. At the same time, the issue is very complex and cannot be addressed in a single, swift action that covers all cases. NSPE has and will continue to monitor and respond to regulatory and legislative action involving the practice of engineering whenever and wherever it occurs.
But professional engineering is not immune from changes in technology and society. Professional practice in a rapidly changing world is not fixed and rigid. The underlying principles remain valid; their application needs to be open to changing circumstances. NSPE’s newly established Future of the Profession Task Force is considering this issue as part of its work in examining key strategic issues that will shape professional engineering in the decades ahead.
What would it take to modify these laws? Dialogue with industry and government leaders? Targeted efforts to push for legislative and regulatory changes? Other initiatives?