Prosecutorial Discretion at the EPA: Some Evidence on Litigation Strategy

This paper examines the determinants of the EPA’s litigation strategy between 1977 and 1996 focusing on the tenure of Ann Gorsuch. Two hypotheses about this period are tested: (1) that changes in the EPA’s litigation strategy were in fact an effort to reduce the expected penalty for violating environmental laws or (2) that the changes made in litigation strategy were consistent with efforts to reduce transaction cost. Contrary to previous research, I find no conclusive evidence of an overall shift toward business interests in EPA prosecutions. There is, however, clear evidence of shifts in the EPA’s litigation strategy across administrations.