DOL, Dubious About ESG Pension Investing, Cuts It a Bit of Slack in Final Rule

The regulation still requires that plans only use financial considerations in investments, but says companies’ pollution and bad governance may be factors, too.

The Department of Labor (DOL) on Friday eased its stance a small amount against environmental, social, and governance (ESG) investing, but it remained determined in its declaration in a final rule that Employee Retirement Income Security Act (ERISA) plan fiduciaries must make investment decisions that won’t sacrifice returns.

In June, the DOL proposed a rule that determined employer-sponsored plans have a sole fiduciary duty to beneficiaries, not to social causes advanced through ESG investing.

The proposal proved to be hugely controversial in the investment community. More than 1,100 letters poured in during the 30-day comment period, and more than 7,600 signers backed separate petitions. Many argued the ESG rule would chill sustainable investments for the broader investment community beyond company retirement plans.

But in its final rule, the DOL said it acknowledges that there are cases in which ESG factors could be considered financially material. In the summary of the final rule, the regulator said a company’s failure to properly dispose of hazardous waste could be an example of possible business risk. Poor corporate governance was another example of a non-pecuniary factor that could implicate risk.

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Still, the final rule that stipulates investors must solely use financial considerations for investments could continue to have a chilling effect on ESG investments.

“Protecting retirement savings is a core mission of the US Department of Labor and a chief public policy goal for our nation,” US Secretary of Labor Eugene Scalia said in a statement.

“This rule will ensure that retirement plan fiduciaries are focused on the financial interests of plan participants and beneficiaries, rather than on other, non-pecuniary goals or policy objectives,” he added.

ESG proponents argue that sustainable investments need not run contrary to fiduciary considerations. A Harvard research paper recently determined that ESG investments perform better during market downturns, and over the long-term, than do traditional investments.

But the DOL, which unveiled the rule the week before the US presidential election, has been fearful that the explosion in popularity of ESG approaches would present additional risk to investments. A Morningstar report found that assets invested in sustainable funds grew nearly four times larger in 2019 than in 2018.

Regardless, Lauren Goodwin, economist and multi-asset portfolio strategist at New York Life Investments, said last week in pre-election comments that she anticipates “attention to ESG investing to increase over time regardless of who sits in the Oval Office.”

A labor- and climate-focused Biden administration would likely alleviate challenges facing ESG investments, she said, while a Trump administration could continue to be skeptical about the sustainable investments.