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Last but not least, the Court’s decision in West Virginia v. EPA impedes governmental power to address the most difficult and threatening problem that humanity has ever faced: global climate disruption. Once again, the Court undercuts the ability of government to preserve the right to life of present and, in this case, future generations. Professor Richard Revesz confirms that the new major questions doctrine announced in West Virginia, and effectively applied in an earlier case National Federation of Independent Business v. Department of Labor, “casts an ominous pall over the nation’s regulatory future.” Even though Congress acted in August to re-empower the EPA by adopting a statute overturning the effect of West Virginia with respect to the agency’s authority to regulate greenhouse gases, the new major questions doctrine will continue to impede effective climate and other health-related policies.

EPA’s timeline for power-sector regulations has slipped since the start of the Biden administration, causing some environmentalists to worry that the rules could more easily be removed if Republicans win the White House and Congress in 2024. “I think what we're seeing is the Biden administration take the time to be deliberate, to develop the regulatory record to make sure the regulations that they finalize can withstand the inevitable litigation,” said Carrie Jenks, executive director of the Environmental & Energy Law Program at Harvard Law School. An April analysis by the Institute for Policy Integrity at New York University School of Law found that legal defeats caused 192 Trump-era rules to be rescinded on topics as diverse as the environment, immigration and worker protections. Richard Revesz, who directs IPI, has since been tapped as Biden’s regulatory czar.

Some advocates support Revesz’s nomination given that he is a long-time New York University law professor who founded the school’s Institute for Policy Integrity that often supports protective EPA standards. Revesz’ nomination is also winning support from a host of bipartisan legal academics and others, who sent a recent letter to the Senate committee “in enthusiastic support of his nomination.”

President Biden’s nominee to become the Administrator for the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) – told senators at a September 29 nomination hearing that he is targeting updates to existing regulatory analysis standards if he is confirmed to the new post. At a Senate Homeland Security and Governmental Affairs Committee hearing, Revesz talked about pushing forward ongoing efforts to update OMB’s Circular A-4, which guides development of regulatory analysis, but which has not been updated in 20 years.

Revesz's writings point out that costs and benefits may hit different classes and races differently. Suppose costs were imposed mainly on the poor (which is the history of the failure to regulate pollutants) while benefits went to the rich. And suppose a regulation reversed that pattern. Distributional analysis would show that it is well worth enacting, in contrast to traditional cost-benefit analysis, which looks at averages or, worse, values the life of a poor person as worth less than the life of a rich one. Revesz, assuming he is confirmed, will soon get the chance to put these revolutionary concepts into practice.

Richard Revesz, the Biden administration’s nominee to run the White House regulatory review office, drew little direct opposition from Republican lawmakers at his Senate nomination hearing, even as several GOP senators expressed significant concern over the administration’s approach to environmental and other regulations. At the Sept. 29 hearing of the Homeland Security & Governmental Affairs Committee, Revesz stressed that he would focus on transparency as well as even-handed cost-benefit analyses of agency rulemakings should he be confirmed as administrator of the White House Office of Information & Regulatory Affairs (OIRA).

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. 

EPA got more than $40 billion from the Inflation Reduction Act, including to implement the methane fee and stand up a national green bank. "EPA has never administered anything at this scale,” Michael Gergen, a Latham & Watkins LLP attorney, said on a recent Institute for Policy Integrity panel. “I assume folks at EPA are kind of freaking out about this.”

During his confirmation hearing Thursday, Richard Revesz addressed how the Supreme Court ruling on EPA's authority could affect federal rulemaking.

A Senate committee on Thursday will question environmental policy expert Richard Revesz, President Joe Biden's nominee to lead the White House regulatory office.