ESG Is the Word. A New Day for ERISA Investing

A Texas District Court recently issued an opinion, in Utah v. Walsh, favoring the U.S. Department of Labor (DOL) regarding the legitimacy of the DOL’s final regulations addressing “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The regulations came under scrutiny for how they assess fiduciary consideration of environmental, social, and corporate governance (ESG) factors in ERISA plan investing. On a summary judgment motion, the court recognized the complexity of the prior Trump-administration final regulations, noting that “in stakeholders' eyes, [prior regulations] created a ‘chilling effect’ on the appropriate integration of climate change and other ESG factors in investment decisions.” Referencing the Chevron Doctrine’s two-step approach in determining the legitimacy of agency regulations, the court concluded that the DOL regulations prevailed in meeting both step one and step two of a Chevron Doctrine analysis and were not “manifestly contrary to the statute.” The ruling gives ERISA plan fiduciaries room to consider ESG factors when selecting and monitoring investments on behalf of participants.

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Related Content

• ERISA Fiduciary Duties
  Learn more about the final regulations, including how they eliminate special restrictions on qualified default investment alternatives under the prior rules which prohibited investments from having, at any level, an investment goal or principal investment strategy that uses any nonpecuniary factor.   
• Environmental, Social and Governance (ESG) Resource Kit
  Reference this resource kit which collects all Practical Guidance resources (including Employee Benefits & Executive Compensation) that address environmental, social, and corporate social responsibility issues.  

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