This article was originally published in the Geo-Strata, the magazine of the Geo-Institute. It is republished with permission.
State licensure of engineers began in 1907 in Wyoming. Licensure became a requirement after the State Engineer discovered that maps submitted and signed by “engineers” and “land surveyors” were confusing and inaccurate. In fact, the people signing them were actually lawyers, notaries, and others without relevant training. Professional engineering (PE) licensure was initiated in Texas in 1937 in response to the New London School explosion that killed over 300 students and teachers. An investigation revealed that the installed gas heating system was improperly designed. By 1941, all states had passed laws for PE licensure. According to the National Council of Examiners for Engineering and Surveying (NCEES), the number of engineering licenses in the U.S. increased from about 67,800 in 1941 to 822,600 in 2014. So with the demonstrated success of PE licensure over the years, what’s behind the drive in some states to abandon their licensure requirements?
Licensure Gets More Scrutiny
One of the recent challenges facing professional engineers and geologists in the U.S. is the growing movement toward deregulation of occupational licenses — a trend that could affect the future licensure of geoprofessionals if deregulation is successful. While only 5 percent of workers required an occupational license to pursue their careers in the early 1950s, the U.S. Bureau of Labor Statistics estimates that by 2018, approximately 23 percent of civilian fulltime workers had a license issued by a governmental agency. In Texas, where I practice, approximately 500 occupations are currently licensed by the State. The growth of occupational licensure, primarily attributed to the increasing number of occupations that are regulated rather than to the changing composition of our workforce (from goods to services), now has the attention of economists, policymakers, and advocacy groups.
In a nationwide survey of state occupational licenses for 102 lower-paying occupations, only 13 percent of the surveyed occupations required licensure in every state, and 10 percent only required licensure in one or two states. Additionally, the licensure requirements for education, examination, and training varied significantly among states. While the expansion of occupational licenses in the U.S. has been promoted as a means to protect human health and safety and improve the quality of services, the current view is that the requirements for many licenses are not commensurate with the skills required for that occupation. Moreover, these requirements can hinder economic growth by restricting entry into the occupation, leading to increased costs for consumers because licensed workers command 10 to 15 percent higher wages than unlicensed workers with similar levels of education and experience.
Because some state licensing boards have used their authority to expand the scope of practice of their occupation, an action that the U.S. Supreme Court ruled in 2015 may be subject to antitrust liability unless the board is actively supervised by a state, policymakers are also starting to re-evaluate how license boards should be administered. In 2017, a U.S. House of Representatives subcommittee held public hearings on a proposed house bill (H.R. 3446) that would grant antitrust immunity to state occupational licensing boards only if states implemented certain federal procedural mandates, including adopting specific policies on occupational licensure and enacting specific legislation related to active supervision of the boards. A number of professional organizations, including ASCE, opposed the proposed federal intervention. The subcommittee did not vote on the proposed bill, and it died at the end of the last legislative session.
In 2015, the White House issued a policy report on occupational licensing that presented three overarching licensing best practices:
- Ensure that licensing restrictions are closely targeted to protecting public health and safety, and are not overly broad and burdensome
- Facilitate a careful consideration of licensure’s costs and benefits
- Work to reduce licensing’s barriers to mobility in the marketplace
This report has caused a number of states to jump on the occupational-license deregulation bandwagon and begin questioning the need for any licensing. The problem for engineers is that reviewers making decisions about whether PE licensure serves a meaningful public interest often do not have a full understanding of engineering practice and the ethical and often legal obligation that engineers have to hold public safety paramount. Moreover, the reviewers are likely not aware that PE licensure began decades ago because engineering design was being performed by unqualified practitioners. As such, PE licensure is not an entry barrier to the professional — rather, it prevents an unqualified practitioner from providing such services. These issues are further clouded when licenses for learned professionals that require specialized knowledge and training, such as engineering, are not distinguished from those of other occupations. This deflates the importance of PE licensure and its role in protecting the public health, safety, and welfare.
My Personal Awareness and Engagement
I first became aware of the licensure deregulation movement at Geo-Structures 2016 in Phoenix, when I attended the Arizona House Commerce Committee hearing on a house bill (HB 2613) that would deregulate certain licensed occupations, including geologists. It would also require the Arizona Department of Administration to evaluate if all state non-health regulatory boards, including the board that regulates professional engineers, should be consolidated under their purview. This house bill was contrary to the state’s view in 1956, when Arizona became the first state in the country to offer a professional geologist (PG) license. Today, a PG license is available in 32 states.
As a governor on the G-I Board, I was allowed to advocate for 30 seconds on behalf of state licensure for geologists and describe how PG licensure is essential for ensuring that geologists making critical assessments affecting human health and safety, for example regarding groundwater supply, meet minimum training and experience requirements. Officers from ASCE’s Arizona Section were there as well. From what I recall, the PG license was only one of the occupational licenses being considered during the hearing for deregulation. And of course PG licensure was the last license considered at the hearing, after those for assayers, athletic trainers, citrus-fruit packers, cremationists, yoga teacher instructors, and landscape architects. Landscape architects were removed from the bill after the legislators were made aware that their profession is licensed in all 50 states, and that Arizona landscape architects would lose their ability to work in other states based on license reciprocity.
The geologists, with the support of their lobbyists, partially fended off the house bill challenge: there’s still a professional geologist on the Arizona Board of Technical Registration, and there’s still licensure of geologists in the state. Disappointingly, however, there’s now a new category of geologist, a “trained geologist,” who can practice geology in Arizona without a license. The Board defines a trained geologist as a person who’s earned a geology degree from an accredited educational institution and has at least four years of geological work experience outside of an educational institution.
Challenges to Licensure
Unfortunately, my experience in Arizona is just an example of what’s been happening elsewhere. For engineers, the first direct challenge to PE licensure from the licensure deregulation movement occurred in 2015 after Indiana formed the Jobs Creation Committee (JCC) to assess the efficiency and effectiveness of 70 professional licenses. The JCC started its work by reviewing the relevance of 11 professional boards, including those for engineers and surveyors. The preliminary recommendations included maintaining boards for accountants and architects, and sunsetting boards for hearing-aid dealers, home inspectors, engineers, and surveyors. The rationale given for sunsetting the engineering board, and therefore PE licensure, was that the work performed by engineers receives adequate oversight from other governmental agencies. The JCC also indicated that the land-surveyor professional would be a great candidate for a newly established self-certification registry. After public input from stakeholders, including ASCE and other professional organizations, the JCC revised its decisions affecting engineers and surveyors. Over 30 states are now reviewing the relevance of licensure boards, the need for occupational licensing, and license prerequisites, or are proposing legislation to do so.
A direct challenge to PG licensure occurred in August 2018, when the State of Texas Sunset Advisory Commission recommended abolishing the Texas Board of Professional Geoscientists (TBPG) because it did not find that licensure served a meaningful public interest in Texas through the least restrictive form of regulation necessary to protect the public. The thought stemming from the licensure deregulation movement is that if public protection can be achieved with a less restrictive form of regulation, such as state certification or registration, or even with no regulation, the most appropriate control on the occupation is the one that poses the least regulation and barriers to entry.
At first glance, the facts presented by the Commission seem compelling:
- There has been a historical lack of meaningful enforcement action since the TBPG was established in 2001; 89 percent of the enforcement actions were initiated by the TBPG, rather than the public, and were for low-risk administrative violations.
- No catastrophic event or public harm was identified as being the impetus for creation of the TBPG, and no measurable impact on public protection was identified that could be directly attributable to either unqualified or unlicensed geoscientists.
- Half of the practicing geoscientists in Texas are exempt from regulation because they practice exploration and development, or for other reasons, and 78 percent of current licensees were grandfathered into the profession without passing the Fundamentals of Geology (FG) and Practice of Geology (PG) licensing exams.
- Other state agencies review submittals from licensed geoscientists and provide more regular and direct oversight of their work.
In November 2018, after much input from geoscientists, professional organizations such as ASCE’s Texas Section and the G-I, and others, the Commission voted to continue TBPG and re-evaluate the board in six years. It also recommended relaxation of certain licensure requirements for professional geoscientists and additional training of TBPG members to reduce the potential for antitrust issues. It’s now up to the Texas legislature, which just started a new session in January 2019, to reauthorize the TRBG so it will not be abolished by default.
A Call to Action!
It’s up to us to stay alert regarding upcoming legislative activities regarding the deregulation of geoprofessional licensure and be willing to take appropriate actions, such as meeting with decision-makers, developing coalitions, and speaking at public hearings on licensure issues. At a minimum, we need to understand the issues driving licensure deregulation, including the common themes for deregulation brought up by legislators and review panels, some of which are presented herein, and be able to articulate our position. We also need to increase public awareness of the importance of geoprofessional licensure to public health, safety, and welfare.
Beth A. Gross, PhD, PE, D.GE, F.ASCE
2019 Geo-Institute President