ESG investing has attracted attention from politicians who have attempted to delegitimize ESG as promoting a liberal agenda. During the previous presidential administration, ESG factors were targeted by the U.S. Department of Labor as being an inappropriate consideration for pension plan fiduciaries and a new rule forbid consideration of non-pecuniary factors in selecting retirement plan investments. This unsurprisingly had a chilling effect on retirement plans’ willingness to include investment strategies that incorporated the consideration of ESG factors in the investment process, in effect reducing consumer choice to invest in ESG-integrated investment products.
In November 2022 this policy was reversed by the President Joe Biden’s administration, which acknowledged that climate change and ESG factors can be relevant to risk and return analysis, and therefore are appropriate considerations for fiduciaries. Many states, however, have taken the position that ESG investing is designed to advance a social and environmental agenda, with some governors referring to it as “woke capitalism.” This politicization and hyperbolic rhetoric have caused public confusion about the merits of ESG investing and whether it is an appropriate consideration for fiduciaries. Exclusion of investment products that consider ESG analysis also serves to reduce the options that retirement plans are able to offer employees.
ESG analysis consistent with fiduciary duty
We hope to be able to clarify some of these questions, at least as it relates to the investment process at ClearBridge and how we approach our fiduciary duty. As a signatory of the Principles for Responsible Investment (PRI), a United Nations–founded organization promoting responsible investing, we agree with the PRI assessment that the fiduciary duties of loyalty and prudence require the incorporation of ESG issues. The three main reasons for this are: 1) ESG is an investment norm, with PRI signatories exceeding 5,000 organizations and US$121 trillion of assets under management (AUM) as of September 20221; 2) ESG issues are financially material, with general acceptance that ESG should be seriously considered in any prudent investment process; and 3) policy and regulatory frameworks increasingly require ESG incorporation, and failing to do so could lead to negative legal consequences.
In a recent article in the Harvard Law School Forum on Corporate Governance, attorney Martin Lipton, a founding partner of Wachtell, Lipton, Rosen & Katz, argues that ESG “is inherently apolitical… consideration of ESG principles is not only sensible business strategy, but also is necessary to ensure long-term sustainability and value creation, and to fulfill the fiduciary duties owed by the board and management to the corporation and to shareholders.”2 As investment managers, we similarly view incorporation of ESG as a critical part of our fiduciary duty to prudently manage our clients’ capital with the goal of long-term value creation.
Offering investors options and freedom to choose
Lastly, we believe transparency and providing our clients with investment options that align with their goals, objectives and values is both good business and beneficial to client outcomes. We believe offering a wide variety of investment product solutions empowers investors to choose more precisely how their capital is invested. After all, it is entirely an investor’s prerogative to decide where and where not to invest. Rather than exemplifying a pernicious “woke capitalism,” offering investment options that respond to investor demand is entirely aligned with a free market.
At the same time, the rise in popularity of ESG has led to legitimate concerns about greenwashing. New regulatory oversight that attempts— in good faith—to provide rigor and transparency to ESG investing, and to protect investors from dubious ESG claims, will enhance the maturity and long-term health of ESG investing. As a firm that has integrated ESG into the investment process for 35 years, and that manages client assets with high fiduciary standards and responsible stewardship, we welcome transparency and clear disclosure that helps clients distinguish between authentic practitioners and those with less rigor.