Biden’s Nominee Makes His Case to Take the Government’s Top Regulatory Job
Richard Revesz gained the support of former OIRA administrators, but still has some progressive detractors.
President Biden’s pick for “the most important job in Washington that no one ever heard of” testified on Thursday, underscoring his support for cost-benefit analysis in the rulemaking process. He also told lawmakers on the Senate Homeland Security and Governmental Affairs Committee that if confirmed, he would lean into the effort to modernize regulatory reviews that the president launched upon coming into office.
“I’m a strong supporter of the use of cost benefit analysis to evaluate regulations,” Revesz, most recently the AnBryce Professor of Law and Dean Emeritus at the New York University School of Law, on the much-debated step in the rulemaking process.
“A great deal of my academic work has been about that and has been supportive of the use of cost benefit analysis,” he continued. “Executive Orders 12866 and 13563, which President Biden reaffirmed, made clear that the benefits of regulations must justify the costs and the regulation should maximize net benefits, except where precluded by statute.” He told senators he’s a fan of “evidence-based decision making” and doesn’t think cost-benefit analysis should be a Democratic or Republican practice, but rather used “in a fair and even-handed way.”
Revesz also noted that OMB Circular A-4, which serves as a roadmap for regulatory analysis, is almost 20 years old and said that, as Biden called for in his Day 1 memo on modernizing regulatory review, “Circular A4 should be updated to account for advances in scientific and economic understanding in how the costs and benefits of regulations affect the American people and are distributed across populations.”
If confirmed, Revesz said his first action would be to receive an update from OIRA staff on what the progress has been so far on updating the circular and implementing the memo overall and how to move forward on the president’s directive.
As for his management style, he said, “I am accessible to my staff and responsive to their concerns,” and added that he believes in “hearing a full range of perspectives before making a decision.” Additionally, “I lead by example and not by command,” he said. “I would bring the same management style to my position leading OIRA.”
Revesz also noted he is a firm believer in transparency in agency guidance documents and that they should be made available in a user-friendly way. If confirmed, he would talk to staff from OIRA and others in government to learn what can be done.
On Inauguration Day, Biden revoked Trump’s executive order that required agencies to put all of their guidance documents on an online portal, which was part of the Trump administration’s efforts to rein in “unaccountable bureaucrats.” This was not discussed during the hearing.
“Major Questions Doctrine”
Over the summer the Supreme Court issued a decision severely restricting the Environmental Protection Agency’s powers to regulate greenhouse gasses and fight climate change as well as establishing the “major questions doctrine,” which set the precedent that federal agencies have little flexibility to create new regulations with major economic or political significance that rely on authorities not clearly laid out in law.
When asked how he would handle the “major questions doctrine,” Revesz replied, “A very important role of OIRA review involves making sure that the regulations are legal” and now “West Virginia vs. EPA is the law of the land.” Therefore, “clearly agencies need to think about whether regulations that have vast economic and political significance have been explicitly authorized by Congress.”
Ensuring compliance with that decision “is part and parcel of ensuring compliance with legality with all kinds of other questions that might come up,” the nominee said, adding that if confirmed, it would be his job to “ensure that was the case.”
Commentary on Revesz’s Nomination
Earlier this week, six former OIRA administrators who are Democrats and Republicans (including President Trump’s) released a letter in support of Revesz.
“Some of us have disagreed, and continue to disagree, with Professor Revesz on important questions of regulatory policy, as we have disagreed with each other,” they wrote. “We are united, however, in our belief that Professor Revesz, if confirmed, would devote his considerable intellectual acumen and skills toward the promotion of OIRA's core missions.” They urged the Senate committee to move quickly on his nomination, “given the essential role that OIRA has to play in policy initiatives already under way.”
Also, a diverse group of legal academics, practitioners and former government officials from both parties signed onto a letter sent this week supporting the nominee.
“Ricky’s academic and public policy accomplishments are legion: dean of New York University School of Law, leading scholar and teacher, director of the American Law Institute, and founder and director of the nonpartisan Institute for Policy Integrity,” they wrote. “In all these roles, Ricky has been a leading voice for sound and effective law and regulatory policy. He has also demonstrated an extraordinary ability to work with people of diverse opinions. His intelligence and integrity are legendary among all of us who have worked with him.”
But James Goodwin, senior policy analyst at the Center for Progressive Reform, told Government Executive after the hearing, “From my perspective, it was a colossal missed opportunity for the Biden administration to articulate its vision on regulation and the role it will play in the administration's efforts to make our lives better.”
Goodwin said that he rejects Revesz’s claim that “cost-benefit analysis can be applied in a neutral, apolitical fashion,” arguing it is “inherently political, and it is inherently anti-regulatory.”
Shortly after the president announced his pick to lead OIRA, the Coalition for Sensible Safeguards, an advocacy group of more than 150 organizations, sent a letter to OMB Director Shalanda Young strongly encouraging the Biden administration to prioritize carrying out the reforms of the Day 1 memo.
“[The coalition] applauds the Biden administration for making significant progress on its ambitious regulatory agenda to protect consumers, workers, public health and the environment; empower marginalized communities; and enable swift action to address the climate crisis,” wrote Robert Weissman, president of Public Citizen and Susan Weinstock, CEO of Consumer Federation of America, who are co-chairs of the coalition. “Yet, there is much more to be done.”
During his almost two-year presidency, Biden has championed the use of regulations to carry out his major policy priorities, such as curbing climate change and advancing equity. The latest version of the administration's regulatory agenda shows precisely what the agencies are working on. The use of the regulatory process will become even more critical to the administration if the Democrats lose control of Congress in the upcoming midterm elections.