Of doing right and tiebreakers
Timothy R. Yee, AIF, CPFA?, C(k)P?, CHSA, NQPA, CSRIC?, RI(k)
President at Green Retirement, Inc.
A federal judge in Texas upheld the Biden Administration’s ESG rule, rejecting a challenge from 26 Republican-led states. The rule allows 401(k) fiduciaries to consider environmental, social, and governance (ESG) factors as a tiebreaker in investment decisions. The states argued the rule undermines retirement protections and exceeds the Labor Department’s authority under ERISA. The court ruled that the rule does not violate ERISA and does not permit fiduciaries to act outside beneficiaries' financial interests. The decision was praised by the American Retirement Association, reinforcing that ESG investments must align with fiduciary duties.
In other words, the judge is upholding ERISA's basic tenants of the "Duty of Loyalty" and "The Prudent Person Rule". All actions taken must be with the best interests of the participants in mind. ESG (and all of the acronyms it may go by or all the differing definitions of impact) is simply another data set for someone to consider. In other words, always "DO THE RIGHT THING". Seems simple enough, right?
I think of ESG analysis as being given additional waypoints to consider on my investment journey. It is up to me to decide whether I want to use the data or not. As a 401k advisor, if I choose not to, I may instead choose traditional or non-ESG investments. The Department of Labor asks that I follow a defendable and repeatable process in addition to the Duty of Loyalty and The Prudent Person rule. Beyond that, the Department of Labor is silent.
I also applaud the judge's decision based on the concept of choice and the free markets. Investment decisions in the 401k are made by participants. This is called "participant-driven". If the employees are not interested in one investment or another, they will state that by not investing in it. There is no need to deny choice to them though. Denying choice seems sort of un-American to me.
The Parting Glass
I have not seen what the 26 Attorney Generals are proposing to do. Appeal the decision? Is the federal judge's decision binding/ the last word? Will they try a different approach? I wonder if the opposition to ESG investing is less about performance and choice but more about ESG values perhaps clashing with their own beliefs and interests? We shall see.