Along with its efforts to repeal, revise and develop regulations, one of the more fundamental impacts of the Biden administration on the regulatory state may be the process of how the benefits and costs of regulations are analyzed and approved by the Office of Management and Budget’s Office of Information and Regulatory Affairs. On January 20, 2021, the White House issued a memorandum entitled “Modernizing Regulatory Review,” which directs the Office of Management and Budget (OMB) to modernize and improve regulations by ensuring the regulatory review process reflects “new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects.” (See Modernizing Regulatory Review | The White House).
This memorandum directs OMB to consult with heads of executive departments and agencies to “produce a set of recommendations for improving and modernizing” the cost/benefit analysis performed by OMB’s Office of Information and Regulatory Affairs. This group must consider “how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Included in the list of factors to be considered are costs that are difficult to quantify such as racial justice, stewardship, and interests of future generations. Mandating the use of these elements in the regulatory review process will be a 180 degree turn from the Trump Administration’s rejection of more amorphous costs.
Although the extent of the impact of the Executive Order is difficult to project at this stage, it is possible that this new approach will allow agencies to justify higher costs of regulations and, in turn, make new regulations based upon these new considerations more difficult to challenge based on the economic costs of the regulation.
