Download PDF Spring Bridge on Sustainable Smart Cities March 15, 2023 The world’s cities face increasing threats from natural disasters, aging infrastructure, traffic, and resource constraints. The articles in this issue examine smart infrastructure, sustainability, net zero carbon options, and autonomous driving, among other approaches to smart and sustainable cities. Engineering's Grand Bargain vs. Licensure-Exemption Laws Wednesday, March 15, 2023 Author: Stuart G. Walesh Widespread engineering licensure-exemption laws dramatically increase risks to the public and undermine engineering’s benefits and commitment to public protection. The October 2018 and March 2019 crashes of Boeing 737 MAX 8 airliners killed 346 passengers and crewmembers and grieved many times that number of family members and friends. These disasters share a common characteristic with many engineering tragedies, such as the Ford Pinto fires, space shuttle Challenger explosion, GM ignition switch disaster, Deepwater Horizon oil rig calamity, amusement ride accidents, Merrimack Valley gas distribution system fires, Gold King Mine wastewater spill, and Volkswagen emissions fraud (Walesh 2021). The common characteristic? All the engineering organizations responsible for these failures were exempt from placing licensed engineers—Professional Engineers (PEs)—in charge of projects risky to the public. Because of the exemptions, and even though the public was often at risk, engineering work did not need to be directed by competent and accountable PEs, whose paramount ethical and legal responsibility is public protection. Instead, bottom-line-oriented managers and executives drove much of the engineering. In the interest of public protection, this first of two articles reviews the history of how US engineering practice evolved to the present unnecessarily risky state. The second article offers remedial suggestions for consideration by engineer employers, federal and state government, and the engineering community (Walesh 2023). State Licensing Authority and the Grand Bargain Dent v. West Virginia, a landmark 1889 US Supreme Court case, gave states essentially unlimited power to regulate professions for public-protection purposes. The case led to others heard by the court, all of which established that a state “has virtually unfetteredpolicy-making power in regulating a profession” (Spinden 2015). That reality caused state legislatures to pass laws requiring licensure for practice in various occupations. In 1907 Wyoming became the first state to adopt an engineering licensing law. Other jurisdictions, often prompted by engineering disasters, followed suit so that by 1950 all 48 states, the then-territories of Alaska and Hawaii, and the District of Columbia had adopted such laws (Spinden 2015). To become a PE, today’s licensure candidates typically must earn an accredited engineering degree, complete four years of increasingly responsible experience, and pass two examinations. PEs then become participants in what has been called the grand bargain between a profession’s members and the public (Susskind and Susskind 2015). Under the terms of the bargain, PEs apply their expertise, experience, and judgment to deliver affordable, current, and reliable services and put the interests of those they serve ahead of their own. Individuals and organizations contracting for services trust PEs to do those things, and grant them exclusivity over a range of services by conferring autonomy in them and paying a fair fee. Licensure formalizes the grand bargain for engineering, as it does for all professions. The bargain is “grand” for professionals and the public because it offers the former ample latitude in practice and the latter substantial protection.[1] Engineering Ethics Codes Articulate Engineering’s Ideology Introducing engineering licensure prompts the question, What is engineering’s purpose? If the medical profession provides care without doing harm and the legal profession seeks justice within the law, what is engineering’s ideology? Engineering’s purpose is to meet society’s physical needs while keeping public protection paramount. To further articulate engineering’s ideology and licensure’s role, the engineering community began to construct, and then build on, a foundation of ethics. The American Institute of Chemical Engineers (AIChE), what became the Institute of Electrical and Electronics Engineers (IEEE), American Society of Mechanical Engineers (ASME), and American Society of Civil Engineers (ASCE) all created and adopted codes in 1912–14 (Hoke 2014). Other engineering groups followed, so that today they all admirably state the following, or something very similar: The engineer will hold paramount the safety, health, and welfare of the public. Most state licensing laws or rules have a similar requirement that is legally binding—except when circumvented by exemptions. Building on that ethics foundation, the US engineering community constructed a superstructure (figure 1): Engineering societies, education and experience, and licensure would support the work of engineers to meet society’s physical needs while protecting the public. Thus remarkably, by the 1950s US engineering had achieved universal licensing laws plus apparent unanimous commitment, via ethics codes, to hold public protection paramount. But has that commitment led to consistent actions on risky engineering projects? Licensure-Exemption Laws Emergence of Licensure-Exemption Laws Beginning in the early 1940s, three decades after adoption of the first state engineering licensing law and during the early part of World War II, many US companies began campaigning to get exemptions for their engineers from mandatory licensing. Exemptions would work like this: Employers would be responsible for their engineers’ work and liable for errors and decisions that caused injuries, deaths, and/or destruction—this liability assumption by manufacturers, industries, utilities, and others would “protect” the public. Thus the 346 families who lost parents, spouses, children, and siblings in the two 737 MAX 8 disasters will receive an average of $1.4 million from Boeing (Robison 2021). No individual engineers were held legally accountable. Engineering disaster victims painfully realize that, while it may provide some justice and financial remuneration, this approach of “closing the barn door after the horses are gone” does not bring back the dead, heal the maimed, or restore what was destroyed. Furthermore, the inevitable negotiation and litigation force survivors to relive tragedies. Putting profit over public protection, in other than low-risk engineering situations, and accepting unnecessary deaths, injuries, and destruction is flawed public policy. Yet it persists, as DC and all states except Arkansas and Oklahoma have engineering licensure- exemption laws and only about 20 percent of practicing engineers are licensed. Thus most states do not require that competent, ethical, and accountable licensed engineers be in responsible charge of designing airplanes; autonomous and human-driven motor vehicles; amusement park and carnival rides; natural gas distribution systems; oil pipelines; electric power networks; railroads; wind farms; and chemical, construction, and manufacturing processes. A state-by-state scan of exemptions from licensing laws reveals, depending on the particular licensing jurisdictions, that they collectively exempt industries, manufacturers, mining and petroleum companies, natural gas and electric utilities, railroads, telecommunication companies, government units (federal, state, county, and local), and the armed forces. How do the laws articulate the licensure exemptions? The Washington state (2020) engineering licensure law exempts “the work of a person rendering engineering…when such services are rendered in carrying on the general business of the corporation and such general business does not consist, either wholly or in part, of the rendering of engineering services to the general public.” Boeing and Washington state practices indicate that they interpret aircraft design and manufacturing as not part of “the rendering of engineering services to the general public.” Fortunately, engineering’s institutional structure varies around the globe, providing opportunities for the engineering community in one nation to learn from their counterparts in others. For example, 12 of the 13 Canadian provinces and territories restrict the term -engineer to licensed engineers and, with one minor exception in Ontario, there are no licensure exemptions.[2] The Resulting Culture Engineer Stephen C. Armstrong (2005, p. 209) observes that “Culture wields great power over what people consider permissible and appropriate.… The embedded beliefs, values, and behavior patterns carry tremendous weight. The culture sends its energy into every corner of the organization, influencing virtually everything.” Culture is also characterized as a collection of scripts written over time in an organization by very busy individuals, especially managers and executives, seeking relief from being bombarded with information and pressed for decisions (Useem 2016). These sometimes morally or otherwise flawed scripts become incorporated, vertically and horizontally, as standard operating procedures. I offer another and consistent definition of culture: “The way things really work around here, especially when the chips are down.” Sometimes morally or otherwise flawed scripts, written by busy managers and executives, become incorporated as standard operating procedures. Culture can have positive or negative effects; the engineering licensure-exemption environment exemplifies the latter. Research reveals that manufacturers, industries, utilities, and other organizations that employ engineers to work under licensure-exemption laws tend to develop bottom-line-first cultures, which override public protection. Consider some examples of the culture created by licensure-exemption laws—in all cases, PEs were not in responsible charge (Walesh 2021). Former Boeing engineers reported that licensed engineers were not needed in aircraft design, including the 737 MAX whose two crashes caused 346 fatalities, and that PEs could not display PE on their badge. During the design of the Ford Pinto, engineers learned that the explosion risk due to a poorly placed fuel tank could be eliminated for $11 per vehicle, but engineers and management decided that settling accident claims would cost less. Many Pinto occupants were injured or died in gasoline-fueled fires and Ford eventually recalled 1.5 million Pintos. A lead Morton-Thiokol engineer urged management to delay the launch of the Challenger because of the likely harmful effect of low Kennedy Space Center temperatures on booster rocket gaskets. -Managers rejected the advice, telling a high-ranked engineer: “Take off your engineering hat and put on your management hat.” Seven astronauts died. For a decade, GM engineers brushed off reports that occupants of six car models were being injured or killed around the globe because of a faulty ignition switch. Eventually, GM redesigned the switch and recalled 2.6 million vehicles. Survivors alleged at least 124 deaths and 275 injuries. A study of two decades of British Petroleum operations leading up to the Deepwater Horizon oil rig tragedy concluded that “oil companies…could not be trusted to police themselves and balance the public good against their own profits” (Lustgarten 2012, p. 333). The explosion and fire killed 11, injured 17, and damaged the environment and economy along 1100 miles of coastline in four states. The National Transportation Safety Board studied the 2018 Merrimack Valley (Mass.) gas distribution system explosions and fires that caused one fatality and damaged or destroyed 131 structures. The NTSB (2019) recognized the potential for similar disasters in 30 states and recommended that all those states “remove the exemption” that caused the tragedy. A few actions occurred in response, such as Massachusetts removing its exemptions for natural gas systems and an unsuccess-ful introduction of congressional bills that would have required, across the country, PE approval of plans for natural gas projects (Walesh 2021). There is otherwise no evidence of major action by states in response to NTSB’s recommendations. A bottom-line-first culture is especially dangerous in engineering organizations because a single engineering failure can injure and kill many. A bottom-line-first culture is especially dangerous in engineering organizations because a single engineering failure can injure and kill many. In contrast, if a surgeon errs during an operation, the consequences—however dire—are limited to one or a few individuals. Data vs. Judgment Interested engineers, as well as other concerned individuals, naturally prefer to see data that prove licensure-exemption laws lead to unnecessary injuries, deaths, and destruction. I believe this could be done by examining a century of engineering tragedies, but that has yet to happen—the effort would be monumental. Absence of statistical proof does not reduce concerns about public protection. Therefore, some of us apply a powerful “tool” used every day in our engineering work: judgment. It is not necessary to halt engineering projects until all the data needed are available to be 100 percent sure of every decision. Instead, we make judgments. My professional judgment, for example, draws on examining engineering disasters, empathizing with victims and survivors, understanding human -behavior (especially groupthink), contrasting engineering’s licensing approach with that of other American professions, and considering the likely priorities of PEs when leading engineering projects. Engineering’s Approach Contrasted with Other US Professions The common US practice of legally not placing PEs in responsible charge of risky engineering projects would be like hospitals not placing licensed physicians in responsible charge of surgery, law firms not placing licensed attorneys in responsible charge of legal services, or veterinary clinics not placing licensed veterinarians in responsible charge of neutering and spaying. Of course only licensed physicians, lawyers, and veterinarians lead in risky situations. The same is true for most professions such as audiology, anesthesiology, optometry, ophthalmology, pharmacy, physical therapy, and psychiatry. However, in America, the law frequently and sometimes disastrously explicitly allows risky engineering projects to proceed without state-licensed professionals in charge. That practice conflicts with the grand bargain. Expected Performance of PEs Those who defend licensure exemptions often note that tragedies sometimes occur even when PEs are in charge, which is true. But in my judgment, engineering projects led by PEs are much more likely to place public protection paramount than those guided by non-PEs or non-engineer managers. Revisit the GM ignition switch disaster caused by engineer employees who, for years, brushed off ominous reports about accidents caused by faulty switches. If laws had required a PE to be in responsible charge, he or she would probably have taken action because of ethical and legal expectations, fear of penalties such as loss of license and fines, and a desire to protect GM from legal liability. More specifically, PEs are more likely to be competent, partly because licensed engineers, when legally challenged, will be held to the standard of care test and because continuing education is a condition of maintaining a license in three-fourths of US licensing jurisdictions; be ethical, especially as relates to public protection, because they are subject to the ethics codes of the jurisdictions that licensed them and code violations have legal consequences; and be independent, viewing themselves as members of a profession whose paramount responsibility is public protection, rather than as technical employees answerable mainly to corporate directives and shareholders. The preceding is not a matter of PEs being “better” than non-PEs. The two have different functions, aspirations, interests, mindsets, and education--experience preparations.[3] Conclusion American engineering’s approach to public protection is a predicament. The engineering community’s widespread claims, via ethics codes, that public protection is paramount contrast sharply with the unfortunate results of equally widespread licensure-exemption laws. The former stress public protection and the latter focus on the bottom line. Reform is needed so that employers place PEs, who hold public protection paramount, in responsible charge of risky engineering projects. If this dichotomy stands, engineering will not fully participate in the grand bargain and the public will continue to face unnecessary risks. Reform is needed so that employers place competent and accountable PEs, who hold public protection paramount, in responsible charge of risky engineering projects. It is also important to support and appropriately engage the majority of graduate engineers who choose nonlicensure career paths. The second of the two articles offers many reform suggestions. References Armstrong SC. 2005. Engineering and Product Development Management: A Holistic Approach. Cambridge University Press. Guston DH. 2000. Retiring the social contract for science. Issues in Science and Technology, Summer. Hoke T. 2014. Summary of AAES member society codes of ethics. National Society of Professional Engineers. Available at https://www.nspe.org/sites/default/files/resources/pdfs/ blog/Codes-of-Ethics.pdf. Lustgarten A. 2012. Run to Failure: BP and the Making of the Deepwater Horizon Disaster. W.W. Norton & Co. NTSB [National Transportation Safety Board]. 2019. Overpressurization of Natural Gas Distribution System, Explosions, and Fires in Merrimack Valley, Massachusetts, September 13, 2018. Washington. Robison P. 2021. Flying Blind: The 737 MAX Tragedy and the Fall of Boeing. Doubleday. Spinden PM. 2015. The enigma of engineering’s industrial exemption to licensure: An exception that swallowed a profession. Faculty publications and presentations, Liberty University School of Law. Susskind R, Susskind D. 2015. The Future of the Professions: How Technology Will Transform the Work of Human Experts. Oxford University Press. Useem J. 2016. What was Volkswagen thinking? The Atlantic, Jan/Feb. Walesh SG. 2021. Engineering’s Public-Protection Predicament: Reform Education and Licensure for a Safer Society. Hannah Publishing. Walesh SG. 2023. Engineering licensure-exemption laws: Suggested reforms to enhance public safety. The Bridge 53(1):57–62. Washington, State of. 2020. Washington State Legislature Revised Code of Washington—Excepted services-fees. Available at https://app.leg.wa.gov/RCW/default.aspx?cite=18.43.130. [1] An article exploring science’s place in society uses the term social contract to convey the essence of a trust-based relationship (Guston 2000). [2] Engineers Canada, https://engineerscanada.ca/ [3] See the second of my two articles for discussion of career options available to degree holders from undergraduate engineering programs (Walesh 2023). About the Author:Stuart Walesh is a PE and independent consultant, teacher, and author who previously worked in the business, government, and academic sectors.