ESG and Pension Plan Investing

Scholars and practitioners appreciate recent changes to ERISA regulations that allow greater investment choice.

The Employee Retirement Income Security Act of 1974 (ERISA) governs approximately 734,000 pension plans in the United States covering approximately $12 trillion in total investments. ERISA-regulated plans are administered by fiduciaries who must fulfill certain duties when determining how to invest plan assets.

Earlier this year, the US Department of Labor issued a rule amending existing ERISA provisions to allow plan fiduciaries to consider environmental, social and governance (ESG) factors in investment decisions. Under the new rule, fiduciaries must still base their decisions on a risk-return analysis when choosing how to invest plan funds, but where investment alternatives provide the same financial benefits, fiduciaries can now choose between alternatives based on additional benefits, not just monetary factors.

The Department of Labor’s updated regulation faced opposition in Congress due to the approval of the ESG Factors in Financial Decisions rule. By a narrow 50-46 majority, the US Senate voted in March to disapprove the Labor Department’s final rule — confirming a similar resolution of disapproval that had previously passed in the US House of Representatives. But President Joseph R. Biden vetoed the joint resolution in late March, allowing the rule to go into effect. He defended the new ESG rule, highlighting “the extensive evidence showing that ESG factors can have a material impact on markets, industries and businesses”.

In addition to the permissive approach to ESG considerations, the Department of Labor’s recent rule also includes changes that emphasize the responsibility of fund managers to manage proxy votes.

The regulatory review invited attorneys and academics to discuss the Department of Labor’s updated ERISA rule, its industry adoption and its future. These scholars highlight the controversies that surround the use of ESG in pension investments, examine the impact the rule changes may have, and offer perspectives on the future of pension plan regulation.

This series includes contributions from: Elizabeth Goldberg, Morgan, Lewis & Bockius LLP; Rachel Mann, Morgan, Lewis & Bockius LLP; Dana Muir, University of Michigan Ross School of Business; Samantha Prince, Penn State Dickinson Law; Natalia Schnitzer, Boston College Law School; and Alexandra Walsh, The regulatory review.


April 24, 2023 | Dana M. Moore

Trustees should consider participant preferences when designing ESG pension plans.


On the anti-ESG resolution, Biden vetoes first

April 24, 2023 | Alexandra Walsh

The president’s veto preserves the pension investment rule, which allows fiduciaries to consider ESG factors.


Changes and challenges to ESG investing

April 25, 2023 | Rachel Mann and Elizabeth S. Goldberg

The Department of Labor’s new rule sets out a principles-based approach to regulating ESG investments.


ERISA Plan Administrators and ESG Factors

April 26, 2023 | Samantha J. Prince

ERISA plan administrators must be able to consider corporate ESG factors in investment decisions.


Say over their 401(k)?

April 27, 2023 | Natalia Shnitzer

Retirement policy should be developed to take account of participant preferences.

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