Environmental, social and governance (ESG) investing has been a focus for investors over the past several years, not to mention a growth opportunity for asset managers. As with any growth opportunity, ESG investing has attracted the attention of global regulators, which sought to pass regulations to ensure truth in advertising when it came to ESG. The E.U. was first with the Sustainable Finance Disclosure Regulation, followed by the U.S., with the SEC proposing new disclosure requirements for ESG funds. ESG has also captured political attention, and now there is a new wave of state-level regulation, with 18 states proposing or adopting laws or regulations limiting investing based on ESG factors. History teaches, however, that these battles over ESG investing are nothing new. The state-level debate over the relevance and materiality of ESG factors is actually a new chapter of the debate that has been going on at the U.S. Department of Labor about whether it is appropriate for fiduciaries of employer-sponsored retirement plans to consider non-traditional factors such as ESG factors. In a guest article, Morgan Lewis attorneys Lance C. Dial and Rachel Mann review the history of ESG investing; discuss the intersection of federal retirement plan regulations and ESG investing; assess the state-level debate over ESG investing; and posit the next steps in this area. For more from Dial, see our two-part series on the Net Zero Asset Managers Initiative: “What It Is and What It Requires
” (Feb. 3, 2022); and “How to Make the Commitment
” (Feb. 10, 2022).