In late June, the Department of Labor (DOL) proposed a rule that would require retirement plan fiduciaries to prove that they are not sacrificing financial returns or increasing risk if they put money into Environmental, Social, Governance (ESG)-related investments. The move comes at a time when investor interest in the space is surging in reaction to wildfires in Australia, the Covid-19 pandemic, a heightened awareness of racial inequity and social justice issues, and an economic downturn that has disrupted labor markets and global supply chains. The move also comes at a time when international regulators, including the IMF and Bank for International Settlements, have raised concerns about the risks of not considering these factors in investment analysis, while large insurance companies, banks and investment managers are focused on navigating away from investments and collateral that risk being left behind in the shift toward greener energy sources. These are moves that are certain to impact corporate balance sheets and asset prices. It is also complicated by the fact that ESG strategies in aggregate have outperformed the broader market with less risk over the past 10 years; this puts fiduciaries in a challenging position whereby the evidence and research indicate these factors are material inputs to investment analysis and that ignoring them could itself be a breach of fiduciary duty. Needless to say, the month-long public comment period is proving to an active one as groups representing thousands of investment managers are planning to weigh in. Our view is that the DOL proposal improperly treats ESG investing as an asset class rather than a series of analytical inputs – not unlike how analysts treat intangible assets – that further develop our understanding of the quality of assets, liabilities and revenue. We expect the rule to be heavily modified before going into effect.
