www.loubar.org 6 Louisville Bar Briefs PROFESSIONAL EXCELLENCE A New Era: Judicial Deference (Or Lack Thereof) in Kentucky in a Post-Loper Bright Enterprises v. Raimondo World Derek Miles For nearly 40 years, Kentucky courts de- ferred “to an administrative agency’s in- terpretation of the statutes and regulations it is charged with implementing.” Huxol v. Daviess Cnty. Fiscal Court, 507 S.W.3d 574, 578 (Ky. App. 2016). This practice of judicial deference was commonly referred to as the “Chevron Doctrine.” This was, of course, shorthand for the United States Supreme Court decision which established it: Chev- ron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Chevron case held that there was nothing inherently unlawful when a court deferred to the decision of an executive branch agency in reaching a judicial conclusion. The Chevron Doctrine was born. And while the Chevron Doctrine was technically only doctrine in fed- eral jurisprudence, many states also adopted such a policy for their own judicial review. Kentucky was one of those states. In the decades following Chevron, the Commonwealth’s Supreme Court held that, pursuant to the Chevron Doctrine, when it is in the “form of an adopted regulation or formal adjudication,” Kentucky courts “re- view an agency’s inter- pretation of a statute it is charged with imple- menting.” Metzinger v. Kentucky Retirement Systems, 299 S.W.3d 541, 545 (Ky. 2009) (ci- tation omitted). This meant that Kentucky courts afforded signifi- cant deference to an agency’s interpretation of statutes within its purview – oftentimes when those very interpretations were being challenged by another party. But the standards established in 1984 through Chevron came to an end two years ago in another United States Supreme Court case: Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Loper, the nation’s highest court ruled it’s the function of courts to decide questions of law independently and that interpreting stat- utes is fundamentally judicial in nature. The Loper court held, for these reasons, interpreta- tion of a statute shouldn’t be left to an administra- tive agency regardless of whether that agency is tasked with enforcing that statute. The Supreme Court’s Loper decision doesn’t mean that agency expertise as it relates to a particular statute is totally irrelevant. It also doesn’t prohibit courts from consid- ering an agency’s interpretations for their persuasive, rather than binding, value. The Loper decision does mean that courts may now also independently interpret federal statutes rather than deferring to an agency’s interpretation of those statutes. With this, the Chevron Doctrine was relegated to the dustbin of federal judicial history (for the time-being, at least). Closer to home, there were indications that when Kentucky courts were confronted with an agency’s interpretation of a statute that the Chevron Doctrine would also be dispensed with in the aftermath of Loper. See Justice Thompson’s dissent in Hall v. BPM Lumber, LLC, 706 S.W.3d 191, 206 (Ky. 2024). However, there were no state-level counterpart holdings to Loper made by the Kentucky Supreme Court. The lack of such rulings is now a moot point. That’s because following the Loper decision, Kentucky’s Legislature enacted statutory changes which fundamentally alter the ap- proach to judicial review of decisions of administrative agencies. These changes came with the passage of Senate Bill 84 (SB 84) during the Legislature’s 2025 Regular Ses- sion. That legislation expressly cited Loper and codified a rejection of the premise that administrative agencies possess superior authority or expertise in interpreting stat- utes. (“WHEREAS, in Loper... the United States Supreme Court ruled that the federal judiciary’s deference to the interpretation of statutes by federal agencies as articulated in Chevron... and its progeny was unlawful.”) In SB 84, the Legislature further declared that judicial deference to agency inter- pretations is inconsistent with Kentucky’s constitutional separation of powers and that courts, rather than executive agencies, bear the ultimate responsibility for determining the meaning of the law. (“WHEREAS, the General Assembly believes that judicial deference to a state agency’s interpretation of a statute is inconsistent with the role of the Court of Justice within the separation of powers provisions of the Constitution of Kentucky...”) With SB 84, Kentucky’s Legislature statuto- rily abolished any form of Chevron-type def- erence previously recognized in Kentucky case law. See generally Metzinger, 299 S.W.3d 541. See also Kentucky Occupational Safety & Health Review Comm’ v. Estill Cnty. Fiscal Court, 503 S.W.3d 924 (Ky. 2016). Now, as set out in SB 84, an administrative body’s interpretation of a statute or admin- istrative regulation “shall not be entitled to deference from a reviewing court” and directs that courts apply de novo review to agency interpretations of statutes, regula- tions and other questions of law. Portions of SB 84 were enacted and codified over Governor Beshear’s veto in KRS 13A, KRS 13B.150 and KRS 446, respectively. Through the passage of SB 84, and with its codification in Kentucky’s statutes, the Commonwealth’s courts are now required to exercise independent judgment when reviewing legal conclusions reached by administrative agencies. As is the case with review of by federal courts following the Loper ruling, while interpreta- tions of any Kentucky agency may still be considered for whatever persuasive value their reasoning might hold, they no longer enjoy any presumptive weight or controlling authority. Instead, the reviewing Kentucky court must determine the best interpretation of the statute or regulation for itself. Practically (and statutorily) speaking, Kentucky has moved from a framework in which agency interpretations often received substantial judicial respect to one in which questions of law are reviewed independently by the judiciary. The Commonwealth’s cur- rent statutory structure mirrors the core holding of Loper. This means that on both the federal and state level, the era of Chevron Deference is over. The era of less deferential judicial review is here. It remains to be seen whether this era also receives its own shorthand for generations of legal minds to commit to memory for decades to come. Derek Miles is a partner at DBL Law and is based out of the firm’s Louisville office. His primary prac- tice areas are administra- tive law and commercial litigation. In addition to serving as the chair of the LBA’s Administrative Law Section, he is the chair of the board of Maryhurst and also serves on the board of KYSHRM. n Elizabeth Monarch MBA, CAI, CRI Auctioneer/Realtor 2023 KYR Realtor State President Lonnie Gann GRI, CAI Auctioneer/Realtor 502.551.1286 auctionsolutionsllc.com Real Estate & Auction Specialist Providing Real Estate & Auction Services: • Estate Liquidation • Senior Living Transitions • Divorce Property Settlements • Business Liquidation • Real and Personal Property Evaluation Serving all of Kentucky and Indiana “ The era of less deferential judicial review is here.