The End of Chevron Deference and the Resultant Weakening of Negligence Per Se Claims
By: Derek Goff
On June 28, 2024, the Supreme Court ended Chevron deference for agency interpretations of federal statutes, and this decision continues to call into question many regulations issued by these agencies which are not grounded in clear statutory authority. In the world of private liability litigation, many plaintiffs rely on these federal regulations to allege that defendants are negligent per se for violating them. The end of Chevron deference provides an opportunity for defendants to not only attack the application of negligence per se arising out of the regulation, but to attack the validity of the regulation itself. By removing deference to agency interpretations, civil defendants have a much better chance of attacking the regulation giving rise to the negligence per se claim.
Chevron Deference
On June 28, 2024, the United States Supreme Court overruled Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., which required courts to give deference to the “permissible” interpretations of federal agencies of ambiguous federal statutes. Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024). The Administrative Procedure Act (APA), passed in 1946, governed how federal agencies make rules and how courts review those actions, but it did not require court deference to agency decisions. 5 U.S.C.A. § 551, et seq. Chevron created a famous two-step test to review an agency’s action. The first step is for the court to determine the intent of Congress by asking whether it had clearly spoken on the question at issue. Chevron, U.S.A., Inc., 467 U.S. 837, 843 (1984). If the statute is silent or ambiguous as to intent, then the court moved to the second question of “whether the agency’s answer is based on a permissible construction of the statute.” The Chevron Court largely shifted the normal duties of lower courts to interpret statutes to administrative agencies based on its perception of an “express delegation of authority to agency to elucidate a specific provision of the statute by regulation.” Id. at 843-44.
What makes an agency’s interpretation “permissible” under Chevron Step Two? In Loper, the U.S. Court of Appeals for the D.C. Circuit held that the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which empowered the National Marine Fisheries Services (NMFS) to monitor programs for fishery management, could be permissibly interpreted under Chevron to require fisheries to fund the salaries of on-board observers, despite the silence of the statute in that regard. Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022). The Supreme Court reversed the D.C. Circuit, overruled Chevron and held that the only permissible interpretation is one that “the court, after applying all relevant interpretive tools, concludes is best.” Loper, 603 U.S. at 400. The Supreme Court found the Chevron Decision “fundamentally misguided” in light of the APA’s mandate and found that the Chevron Decision’s “entire existence . . . was a rule in search of a justification.”
Negligence Per Se
The cause of action for negligence per se allows plaintiffs to bypass proving the normal negligence elements of duty of care and breach of that duty where a defendant has violated a statute, regulation or ordinance that was passed or created to clearly define the standard of conduct and with the intent to protect the plaintiff from the harm suffered. O'Guin v. Bingham Cnty., 142 Idaho 49, 122 P.3d 308, 311 (2005). One court has even found a defendant to be negligent per se for its violation of a rule created by the County Board of Environmental Quality to build fences around a municipal waste landfill. Id. at 314. Other courts have found violations of building codes and HUD regulations to give rise to negligence per se claims. Franz v. Funes, No. E2023-01256-COA-R3-CV, 2024 WL 4346536 (Tenn. Ct. App. Sept. 30, 2024); Antwanella Hall v. U.S., No. 1:23-cv-03323-SDG, 2024 WL 4355184 (N.D. Ga. Sept. 30, 2024).
New Issues Where Loper Meets Negligence Per Se
Negligence per se, rooted in English common law principles, is based on the idea that statutes often set the standards of social conduct. When negligence per se applies to the seemingly infinite number of ever-changing administrative regulations, multiple concerns may arise – especially after Loper.
First, although negligence per se does not create a cause of action which did not exist at common law, it can establish standards of care based on agency interpretations which were never passed nor authorized by Congress. Justice Greg Cook, concurring with the majority of the Alabama Supreme Court, has noted allowing regulations by unelected federal agencies to create private legal liability for state law claims would create “serious separation-of-powers concerns.” Griggs v. NHS Mgmt., LLC, No. SC-2023-0784, 2024 WL 4797211 (Ala. Nov. 15, 2024).
Second, with regard to the end of Chevron deference, negligence per se claims brought after Loper based on violations of federal regulations would increase the role of state courts in determining the validity of agency interpretations of federal law since the courts no longer owe deference to those agencies. Previously, the low bar of “permissibility” meant that most agency interpretations were adopted as reasonable without need for court interpretation.
Third, the extent of Loper is not yet well-established in lower courts especially with regard to the court’s arbitrary or capricious review of agency factfinders. At least one court has held that while Loper ends the deference to an agency’s interpretation of a statute, it does not end the deference afforded to an agency’s policymaking or factfinding (for which courts apply an arbitrary or capricious review). Colt & Joe Trucking, LLC v. U.S. Dep't of Lab., No. 24-CV-00391-KWR-GBW, 2025 WL 56658 at *8 (D.N.M. Jan. 9, 2025). As noted by the Supreme Court in Loper, Section 706 of the APA does require deference for policymaking and factfinding (but not legislative interpretation), but does not extend agency resolutions to questions of law. This leaves open the question of whether a defendant who was found by an administrative agency to have violated a regulation may be held negligent per se and liable to the plaintiff based on the court’s deference to the agency’s determination.
While negligence per se can be a powerful tool for plaintiffs to remove the elements of duty and breach from the consideration of the jury, the end of Chevron deference gives defendants a new tool to fight back. Defendants may attack an agency’s interpretation or regulation as exceeding the statutory authority of that agency, and courts in negligence cases will be forced to consider the issue of the interpretation without easily disposing of it through Chevron deference.
Attorney Contact Info
Derek Goff
derek.goff@swiftcurrie.com
205.314.2408