Regulatory oversight nominee made a career studying regulation
Academic would lead ‘the most important agency you've never heard of’
President Joe Biden’s pick to lead the White House’s regulatory office possesses a background in environmental law, has written extensively on federal regulations and has drawn support from peers who served under Democratic and Republican administrations.
Richard Revesz, a former dean of New York University’s law school known as Ricky, may also play a prominent role in shepherding the Biden administration’s policy agenda into force if Republicans take control of one or both chambers of Congress in January.
Biden nominated Revesz on Sept. 2 to be administrator of the Office of Information and Regulatory Affairs, or OIRA, part of the White House’s budget office, moving to fill a post that has been without a Senate-confirmed leader for about two years.
“It’s a job for someone who’s kind of a wonk and is not terribly partisan. In general, that has been the case,” Susan Dudley, director of the George Washington University Regulatory Studies Center, said in an interview. “I think Ricky is a fine choice.”
If he gets through the Senate, Revesz will helm an office of about 45 staffers that charts many of the White House’s regulatory goals and each year reviews hundreds of federal regulations when they are proposed and in their final versions.
The head of OIRA can weaken or kill regulations, as Cass Sunstein did with an EPA ozone rule in 2011, though such instances are rare.
Pronounced “oh-eye-ruh” and often described as the “most important agency you’ve never heard of,” OIRA crunches the costs and benefits of regulations, oversees federal regulations across executive branch agencies, signs off on the collection of government information, establishes statistical practices governmentwide and coordinates federal privacy rules.
“When I was the administrator of OIRA, I used to say if OIRA didn't exist, we would have to invent it, because the executive branch is so extensive and varied,” Sally Katzen, who led the office during the Clinton administration, said in an interview. “I've often said it was a license to kibitz in the most significant and controversial domestic policy issues.”
Revesz’s nomination will go before the Senate Homeland Security and Governmental Affairs Committee. An aide to Sen. Gary Peters, D-Mich., the committee chairman, said Peters looks forward to examining Revesz’s background, while Emily Benavides, spokesperson for Sen. Rob Portman, R-Ohio, the committee’s ranking member, said the senator “will review the nomination when it comes before the committee.” The committee has not set a date for a confirmation hearing.
Born in Argentina, Revesz came to the U.S. when he was 17, studied at Princeton University, the Massachusetts Institute of Technology and then Yale University, where he received his law degree before clerking for former Supreme Court Justice Thurgood Marshall.
After joining the NYU law school in 1985, he served as its dean from 2002 to 2013 and founded a think tank housed at the school, the Institute for Policy Integrity, in 2008.
During the Trump administration, the institute, along with other university and advocacy groups and research organizations, maintained an online database to track lawsuits over federal agencies’ steps to change or weaken federal regulations, dozens of which concerned environmental or energy issues.
Dudley, who was an OIRA administrator during the George W. Bush administration, said environmental regulations often take up a significant portion of the office’s work. With his background in environmental law and the Biden administration’s efforts to unwind Trump-era rules to weaken environmental protections and write new environmental rules, Revesz seems to fit.
“[The EPA] is often the beat that OIRA spends the most time on anyway, but that probably is true even more in a Democratic administration, and this one in particular,” Dudley said. “That’s another reason why I think Ricky’s background in environmental law is going to be valuable.”
Created in 1980 and empowered by executive orders signed by presidents Ronald Reagan in 1981 and Bill Clinton in 1993, the office plays the role of an ombudsman as federal agencies write drafts of new regulations and then finalize those regulations.
It does not review regulations written by independent federal commissions and agencies, such as the Securities and Exchange Commission, the Nuclear Regulatory Commission or the Federal Energy Regulatory Commission.
Katzen compared the process to a professor guiding a doctoral student.
“It's similar to a Ph.D. faculty adviser for a student's thesis. The student picks the subject matter, does the research and writes it up,” said Katzen, a law professor at NYU. “The professor is experienced and knows the field well enough to be able to say, ‘But have you considered this?’ or ‘Your conclusions in this section are at odds with another section.’ The net result is a better finished product.”
A dependent Congress
Philip Wallach, senior fellow at the American Enterprise Institute, a conservative-leaning think tank, said by phone that he thinks Revesz will be confirmed.
“He's pretty prolific writer on regulatory issues for decades now,” Wallach said.
Wallach said Congress has become overly reliant on OIRA because it is often the only agency reviewing federal rules. Congress should establish a new federal office to study regulations and inform lawmakers, in the mold of the Congressional Budget Office, he said. “You could create a ‘Congressional Regulation Office’ that would make [Congress] less dependent on OIRA.”
Critics often tag the office as a sluggish entity too reliant on cost-benefit analysis, saying that it slows the pace at which regulations enter into force.
Of the roughly 3,000 to 4,500 new rules published annually, OIRA reviews those that are considered economically significant, defined as those having a $100 million impact on the economy or more.
“Cost-benefit analysis is very outdated,” Bitsy Skerry, a regulatory policy associate with Public Citizen, an advocacy group opposed to corporate power, said by phone. “It doesn’t take into account as much the things that can’t be quantified like human dignity, welfare, a better environment, what price you put on clean air, clean water,” she said. “How do you put a price on those things? You really can’t.”
Public Citizen backs a bill from Rep. Pramila Jayapal, D-Wash., that would require an agency that withdraws a rule it has proposed to explain why it did so in a public statement and explain if that decision was based on input from other government offices, including OIRA.
Another role OIRA plays is coordinating between multiple agencies that have overlapping interests and perspectives on a regulation, Dudley said.
Most regulations don't rise to the desk of the OIRA head, Dudley said, citing an example during her tenure when the EPA and Agriculture Department disagreed over how to classify milk. The EPA viewed some milk that had oil in it as hazardous waste, she said. “The Department of Agriculture thought that was a terrible interpretation of their statute. And so that was something that was elevated and had to be negotiated at levels beyond the career staff.”
Of the roughly 4,000 regulations annually, about 40 are considered economically significant, Dudley said.
Jack Lienke, one of two colleagues filling Revesz's shoes at his former think tank, which is known for its own cost-benefit analysis, said in an interview that the benefits of environmental rules often significantly outweigh the costs.
“If you look at the kind of major EPA rules of the Obama era for instance, you'll see that in every case with Clean Air [Act] rules, the monetized benefits alone hugely outweighed the costs of those rules,” Lienke said. “We’re talking billions of dollars because they represent things like avoiding premature deaths from exposure to particulate matter.”
Revesz has long pushed the idea that cost-benefit analysis is not necessarily a bulwark against new regulation so long as the people considering the pros and cons of a rule take a broad look, Lienke said. “Cost-benefit analysis need not be an anti-regulatory tool if agencies pay adequate attention to both sides of the ledger,” he said.
With a gridlocked Congress that struggles to pass laws, regulations can wield outsize clout, said Cary Coglianese, a law professor at the University of Pennsylvania. “The reality is Congress maybe passes, in a busy year, 70, 80 pieces of legislation of, you know, of any size or consequence,” he said, contrasting that figure with the thousands of new federal rules every year.