US. Sustainability Matters: Overwhelming Opposition to Proposed Regulation Limiting the Use of ESG in Retirement Plans

The U.S. Department of Labor has proposed a rule that would limit the use of investments that consider environmental, social, and corporate governance factors in worker retirement plans subject to ERISA, including 401(k) plans.

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The proposed rule questions the financial materiality of ESG issues and assumes that ESG-focused investment strategies and funds are primarily focused on providing “nonpecuniary” benefits, often at the expense of “pecuniary” benefits, otherwise known as risk-adjusted returns. As a result, the proposal lays out burdensome new rules for the conditions under which plan fiduciaries can include ESG investments and out-and-out bans them from being designated as qualified default investment alternatives in 401(k) plans.

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As you might guess, I am opposed to the rule and detailed my views on it in a recent column. My colleague John Rekenthaler also covered the topic. But, curious about what others thought about it, I gathered a group of interested colleagues to download and read the public comments submitted during the 30-day comment period that ended July 30, 2020. All 8,737 of them.

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When a federal agency proposes a rule like this one, it must allow for public comment over a period that is typically 60 to 90 days. In this case, the DOL provided for only a 30-day comment period on a matter of significant and growing interest to investors and retirement-plan participants and beneficiaries. Despite this unusually short comment period, the Notice of Proposed Rulemaking drew 8,737 comments, including several petition letters signed by thousands of individuals.

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