Two proposed bills barring public pensions from considering environmental, social, and governance investment criteria create massive legal risk for any pension fiduciary or service provider. The American Legislative Exchange Council “boycott bill” and the “fiduciary duty” bill, if adopted, would impose irreconcilable legal requirements on such fiduciaries, and subject them to compliance with arbitrary and unworkable legal demands.
The main legal problems the bills create fall into four categories:
(1) the unworkable distinction between “pecuniary” and “non-pecuniary,” a distinction so blurry that the bills are self-contradictory, as we demonstrate;
(2) the clash between the bills’ definition of materiality and that established by the Supreme Court of the United States, such that state law would bar consideration of investment information that federal law requires;
(3) similarly vague and self-contradictory requirements to boycott companies that engage in ESG, and
(4) the transfer of control of proxy voting to elected officials, thereby ensuring the politicization of such voting in direct conflict with the bills’ stated goals.
The boycott bill and the fiduciary duty bill dramatically increase liability risk for plan fiduciaries and service providers without providing any corresponding or even off-setting benefits to fiduciaries or their members. They will reduce the number of service providers willing to work with such pensions, increase liability, insurance, and investment costs for taxpayers, and fund participants and beneficiaries. They should be rejected.
Investment that advances environmental, social, and governance (“ESG”) goals is now the subject of a comprehensive, well-funded, and extremely clumsy legal attack. Decisions not to invest in (or to divest from) companies due primarily to climate change considerations–or to engage companies over these considerations–are in the crosshairs of politicians in states that produce fossil fuels. They have also set their sights on undermining climate-related collaborations such as Climate Action 100+ and net zero alliances for asset owners, asset managers, and insurers.
To those ends, the American Legislative Exchange Council (“ALEC”), an organization of state legislators “dedicated to the principles of limited government, free markets and federalism,” has drafted two model bills. (ALEC refers to them as “policies,” but they are drafted in the form of bills, a “plug and play” approach allowing them to be introduced in state legislatures with very little customization.) One, which bans public pension funds’ consideration of ESG-related factors as inconsistent with fiduciary duty, has not yet been introduced in any states as of December 2, 2022, though more stripped-down versions have been introduced in Idaho and North Dakota. We refer to that bill as the “fiduciary duty bill.”
The second bill defines investment and business decisions undertaken with certain motivations as “economic boycotts” and prohibits governmental entities from doing business with firms that are deemed boycotters ; bills patterned on it or on an earlier version have been adopted in five states and introduced in 10 others, as of December 2, 2022. It is referred to as the “boycott bill.”
A Liability Trap for Fiduciaries and Service Providers
ALEC’s fiduciary duty and boycott bills have the potential to subject public fund fiduciaries and their service providers to liability or exclusion from public contracting for decisions that are consistent with–and even mandated by–their fiduciary and contractual obligations. Both bills proceed from the erroneous assumption that investors’ consideration of systemic risks–including but not limited to ESG factors–is improper, even if a strong connection to risk-adjusted returns is shown.
Lack of clarity regarding the bills’ key terms and silence on how contradictions between them and existing law should be resolved would create a fiduciary trap, in which trustees, their advisors and others may find themselves in an untenable legal situation in which they cannot comply with the ALEC bills without violating other state law or federal law or both. Gaps and ambiguities would also generate substantial compliance risks for fiduciaries. Both of these consequences would diminish the appeal of serving as a fiduciary and providing services to public pension funds, and could increase liability and insurance costs for funds, on top of increased investment fees and reduced returns. In the end, then, the bills would harm the very people they purport to serve: taxpayers and fund participants and beneficiaries, who will face higher costs, lower returns, and greater legal risks in states where the ALEC bills become law.
Two aspects of the fiduciary duty bill cause much of the trouble: first, its attempt to impose an unworkable distinction between so-called pecuniary and non-pecuniary factors in an investment, an impractical and unworkable distinction that was already rejected by the U.S. Department of Labor (“DOL”) following widespread outcry from the investment community. And second, its effort to legally redefine the concept of “materiality.”
The boycott bill’s broad definition of a “boycott” extends to a wide variety of investment and business decisions by asset managers and other service providers, forcing them to choose between doing business in a state that has passed the bill and satisfying their fiduciary and contractual obligations. Both bills allow officials to infer intent from membership in coalitions and other organizations, which flies in the face of those groups’ diverse memberships and varying purposes.
The Unworkable Distinction Between Pecuniary and Non-Pecuniary Factors
The fiduciary duty bill provides that a plan fiduciary is permitted to “take into account only pecuniary factors” when evaluating an investment or evaluating or exercising any shareholder right such as voting proxies. The same section of the bill also prohibits pension fund fiduciaries from “promot[ing] non-pecuniary benefits or any other non-pecuniary goals.” The pecuniary/non-pecuniary distinction was found in a now-rescinded provision of a Trump-era DOL regulation on fiduciary duties under the Employee Retirement Income Security Act (“ERISA”), where it was roundly criticized during the rulemaking comment process. (Many of the same states currently considering these ill-conceived bills are now plaintiffs in a lawsuit challenging the Biden DOL’s recently adopted regulation rescinding this provision.)
A pecuniary factor is defined as “a factor that has a material effect on the financial risk and/or financial return of an investment based on appropriate investment horizons consistent with the plan’s investment objectives and the funding policy.” A non-pecuniary factor “includes any action taken or factor considered by a fiduciary with any purpose to further environmental, social, or political goals.”
As an initial matter, it must be recognized that a group of state treasurers, some of whose states had enacted boycott bills (discussed below), confessed to an ESG-like social motive–protecting “well-paying jobs”–for barring certain financial institutions from contracting in their states. For example, a letter from 16 state fiscal officers to “the U.S. Banking Industry” warned that the states would be “taking collective action in response to the ongoing and growing economic boycott of traditional energy production industries,” which provide well-paying jobs, health insurance, basic infrastructure, and quality of life to citizens in every state.” Similarly, Louisiana State Treasurer John Schroder explained his October 2022 decision to divest Louisiana Pensions from Blackrock by stating, among other things, that “divestment is necessary to protect Louisiana from actions and policies that would actively seek to hamstring our fossil fuel sector…I refuse to spend a penny of our state’s funds with a company that will take food off tables, money out of pockets and jobs away from hardworking Louisianans.”
We agree that taking jobs into consideration is a valid investment goal, especially given that pension funds depend not just on returns but also on employer and employee contributions for purposes of paying benefits. One of us has written a book on this topic, demonstrating the benefits to pension fund beneficiaries from taking jobs into account as a valid investment goal for pension funds. That said, a decision to protect jobs in their states is more consistent with ESG investing than with their own, newly adopted or introduced anti-ESG legislation.
In addition, and as shown above, many investors believe that issues such as climate change are fundamentally economic issues, particularly for diversified investors. This is also true of other so-called “political issues.” If a company discloses that its value is increased because of actions it takes with respect to such issues, is a fiduciary required to ignore the information disclosed by the company?
These are just a couple of the many examples in which the bills are self-contradictory or contradict their proponents’ stated goals. Here’s another: traditionally, “environmental” and “social” are generally grouped with “governance” under the ESG umbrella. But the bill, in one section, targets “environmental, social and political” investment. In a separate section, the bill defines when governance factors might qualify as pecuniary. Thus, in some instances, governance factors could be pecuniary and permissible whereas in others they could be “political.”
The line between governance and “environmental, social, or political,” as well as the definition of governance itself, can shift over time. For example, before the early 2000s, executive compensation was widely considered to be a social issue. Those who raised the alarm about escalating pay levels were accused of moralizing. Over time, however, research began to show that the form and amount of compensation, including the extent to which pay structures encouraged executives to externalize or ignore potentially illegal behavior in pursuit of a higher stock price, could increase risks to a company. As a result, executive pay began to be viewed as a governance issue.
Similarly, investors for years took into account management quality and the depth of the top management bench, without conceiving of those considerations as governance-related. Following some high-profile CEO transition flops, investors began thinking more rigorously about companies’ preparation for such transitions and “CEO succession planning” entered the governance lexicon. These kinds of shifts do not occur instantaneously, and while views are shifting, reasonable people could draw different conclusions about how an issue should be categorized.
Even absent such shifts in risk management, the lines separating environmental, social and political issues from others can be hazy. A common area of overlap involves board oversight. Historically boards had three regular standing committees, audit, compensation and nominating/governance committees. In recent years, additional standing board committees have been created, sometimes at the request of investors, other times because boards themselves have recognized the need for focused oversight on particular issues of importance to the enterprise. Examples of such committees include workforce management, cyber and/or privacy, environmental risks and others. Today, boards face the risk of liability if they do not have proper oversight mechanisms in place to cover potential risks to the company, and these risks can include environmental risks, particularly where the company operates in a highly regulated industry.
Such considerations could be classified as governance-related, since they most directly involve the structure of board committees. But the underlying subject matter could also support a conclusion that the use of such a committee furthers environmental, social, or political goals. Over 1,000 companies have cut back their presence in Russia, beyond requirements imposed by sanctions, since Russia invaded Ukraine. Some might characterize those moves as designed to achieve political goals, but a study by Jeffrey Sonnenberg and colleagues analyzed the reactions of the equity and credit markets to decisions by companies with exposure to Russia and concluded that decisions to pull back were rewarded by investors, likely due to concerns over “the negative effect of international economic sanctions, reputational risk and consumer scrutiny” of companies remaining.” Additionally, all of these considerations could be considered to be financial factors, and no doubt many directors recognize that proper consideration of both these types of risks and various ESG factors can significantly impact shareholder value.
Likewise, a board’s response to a majority-supported shareholder proposal implicates governance concerns relating to responsiveness as well as the substance of the proposal itself, which may address environmental, social, or political issues. Corporate directors have an obligation to consider the views of shareholders when making decisions for the enterprise, while the very existence of majority-supported shareholder proposals on climate, for example, is proof positive of the blurriness of this distinction. For fiduciaries, a lot rides on whether a policy is characterized as an “environmental” “social” or “governance” policy, and the bill contains no definitions or other guidance on which fiduciaries could rely.
Yet another problem arises because the definitions of pecuniary and non-pecuniary do not mirror each other. As a result, a factor could be both pecuniary and non-pecuniary at the same time. A factor could satisfy the definition of pecuniary, after analysis of the likely impact on risk and return, and the fiduciary’s subjective intention to achieve an environmental, social, or political goal in considering the factor could make it non-pecuniary as well. For example, a fiduciary might rely on an analysis showing that a larger ratio between the CEO and other executive officers’ compensation is associated with materially poorer returns to establish that ratio as a pecuniary factor. The fiduciary might also believe that excessive CEO compensation increases income inequality and that considering the compensation ratio when making investment and stewardship decisions will help reduce it. Would a non-pecuniary motivation cancel out the objective determination that a factor materially affects risk and return? Trust law would answer “yes” to that question, at least when a fiduciary breaches the duty of loyalty by acting in a self-interested way. As the bill does not try to harmonize the pecuniary/non-pecuniary definitions with the more general duty of loyalty standard contained in the bill, fiduciaries are in the dark about how that conflict would be resolved.
Why does this matter? Would a fiduciary ever reveal these kinds of impermissible subjective intentions, in light of the potential consequences? A provision of the bill would obviate the need for a declaration or slip-up by allowing one to infer a fiduciary’s non-pecuniary motivation from outside circumstances. It states, “A fiduciary purpose may be reasonably determined by evidence, including, but not limited to, a fiduciary’s statements indicating its purpose in selecting investments, engaging with portfolio companies, or voting shares or proxies, or any such statements by any coalition, initiative, or organization that the fiduciary has joined, participated in, or become a signatory to, in its capacity as a fiduciary.”
This provision is way overbroad, vague and is likely to cause greater harm than good to a fiduciary trying to act on behalf of plan participants. For example, a fiduciary may join or participate in an organization for many different reasons, including networking, education, policy advocacy, and a desire to influence the group’s direction. A fiduciary thus may benefit from involvement with a group without agreeing with all of its positions and activities and indeed it is not unusual for fiduciaries (or individuals) to be part of groups or organizations where they do not agree with every statement or decision by that particular group. When individuals join political parties, for example, it does not mean they agree with all of the policies of that party. Similarly, it is common for companies challenged about membership in trade associations that take positions contrary to the companies’ expressed values or public stances to respond that they need not embrace all aspects of a trade association to obtain value from membership. The same is true for institutional investors, not all of whom agree with all the policies of all the organizations they join. In the same way, a fiduciary might join an investor organization to support its shareholder rights policy advocacy, even though the fiduciary does not endorse certain other policy objectives.
Also, it is not clear what constitutes an organization’s “statements indicating its purpose in selecting investments, engaging with portfolio companies, or voting shares or proxies.” Most organizations in which fiduciaries might participate are not themselves shareholders, so they do not engage in those activities. Even assuming the provision refers to statements organizations make about investing and stewardship more generally, those statements tend to be general and do not map neatly onto individual fiduciaries’ decision making.
The Council of Institutional Investors (“CII”) , a trade association for pension funds, lists 13 advocacy priorities on its website, but it is safe to assume that every member does not support all of them. Similarly, the Principles for Responsible Investment (“PRI”), whose more than 5,000 signatories include U.S. public pension funds, publishes white papers, puts out case studies, produces a podcast and webinars, and holds in-person conferences. It’s not clear which statements made in these media should be attributable to CII or PRI, given the participation of outside speakers and writers in both CII and PRI’s work. And not all statements even by CII and PRI’s own staff apply equally to all signatories, which are governed by different legal standards and have varying investment time horizons and objectives. Pursuing one or more of the UN’s Sustainable Development Goals (“SDGs”) for their own sake, rather than solely as a way to boost returns, might be permissible in some jurisdictions and for certain kinds of investors, but not others. For example, it is not reasonable to infer from PRI’s guidance on investing in alignment with the SDGs that all PRI signatories intend to eliminate hunger or reduce inequality when making investment decisions.
A second definition of “pecuniary” in the bill could limit fiduciaries’ ability to take advantage of new investment approaches involving ESG considerations. It states that “[e]nvironmental, social, corporate governance, or other similarly oriented considerations are pecuniary factors only if they present economic risks or opportunities that qualified investment professionals would treat as material economic considerations under generally accepted investment theories.” This concept is taken from the regulations implementing ERISA, which provide several options for plan sponsors to offer as qualified default investment alternatives (“QDIAs”). QDIAs are investment products in a participant-directed plan in which a participant’s retirement plan assets are invested if she did not select any other investment option; they must be based on “generally accepted investment theories” in order to avoid fiduciary liability for any losses stemming from the investment. A conservative approach makes sense in this context, given that a default investment option should not have higher-than-average risk.
Generally accepted investment theories also play a role in defining the circumstances under which an ERISA plan sponsor may provide investment advice to plan participants and beneficiaries, another context in which a conservative approach is consistent with the need to protect those at an informational and expertise disadvantage. More controversially, the DOL tried to import this concept into the 2020 rulemaking’s now-rescinded pecuniary/non-pecuniary definitions, backing down after commenters objected that the standard could “place restraints on the discretion fiduciaries need to adjust their investment practices to keep pace with the constantly changing investment landscape and emerging theories that develop alongside.” By trying to freeze investment approaches in place and creating uncertainty about the permissibility of relying on novel or emerging investment theories, the bill threatens to limit the strategies covered funds may follow, potentially disadvantaging them.
The fiduciary duty bill imposes heightened obligations on fiduciaries who have concluded that “environmental, social, or corporate governance, or other similarly oriented factors” are pecuniary by requiring them to “examine the level of diversification, degree of liquidity, and the potential risk-return in comparison with other available alternative investments that would play a similar role in their plans’ portfolios.” A fiduciary treating an environmental, social, or corporate governance factor as pecuniary must also evaluate “whether greater returns can be achieved through investments that rank poorly on such factors.” Because the universe of “other alternative investments that would play a similar role” is potentially unlimited, and the meaning of “rank poorly” is unexplained, it would be difficult for fiduciaries to be confident that they have satisfied these exhaustive comparison requirements. These additional requirements also suggest that there is something improper or suspect about determining that an environmental, social, or corporate governance factor is pecuniary, which could deter fiduciaries from considering them.
The fiduciary duty bill applies not only to investment choices but also to stewardship decisions such as proxy voting and company engagement. It provides, “[a]ll shares held directly or indirectly by or on behalf of a pension benefit plan and/or the beneficiaries thereof shall be voted solely in the pecuniary interest of plan participants. Voting to further non-pecuniary, environmental, social, political, ideological or other benefits or goals is prohibited.” The second sentence widens the scope of prohibited motivations beyond those identified for investment decision making. It also assumes, despite the evidence to the contrary, that ESG goals cannot be pecuniary as well.
Although it’s tempting to characterize this as a third definition of “non-pecuniary,” that would be inaccurate, as non-pecuniary appears alongside “environmental, social, political, ideological or other benefits or goals.” It’s hard to know how to interpret this provision; if taken literally, it would prohibit all motivations–”other benefits or goals”–when engaging in stewardship activities. Another possible approach would allow attorneys general to define “other benefits or goals”–kind of an “I know it when I see it” catch-all–which would create significant uncertainty and risk for fiduciaries.
The fiduciary duty bill may also give fiduciaries a true “Hobson’s choice”, where they have to ignore what the company’s own directors are saying about the business or face the risks created by the fiduciary bill. This will occur when the company’s directors—who have the duty to disclose all material information to stockholders and be most informed about the company’s business, including its risks—determine that the company needs to adopt an environmental, social, or governance policy to improve the company’s business. For example, if the board of a sneaker company adopts a policy requiring all of its suppliers to pay workers a living wage and adopt other worker protections because the board believes that such policies benefit the company’s brand, are fiduciaries supposed to reject the views of the corporate board or are they required to “examine the level of diversification, degree of liquidity, and the potential risk-return in comparison with other available alternative [sneaker company] investments that would play a similar role in their plans’ portfolios”?
Redefining Materiality to Conflict With Corporate and Securities Law
A second significant flaw in the fiduciary duty bill’ is its attempt to redefine the legal concept of materiality. This redefinition, on which the pecuniary factor discussion hinges, sets up a direct conflict between state and federal law, putting trustees in a legal trap and creating significant further confusion about how a trustee is supposed to act.
The concept of materiality is of crucial importance under federal securities laws. In the presence of a duty to disclose information to investors, companies must disclose all “material” information. Moreover, if companies release information that is false, the false disclosure could trigger securities fraud liability only if the information was “material.” Thus the concept of materiality is key to the system of periodic disclosure established by U.S. securities laws. What does it mean?
In a seminal case, TSC Industries, the Supreme Court of the United States defined materiality as information that: “would have assumed actual significance in the deliberations of the reasonable shareholder… There must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Recent SEC regulations have found that information related to climate change or human capital management may be considered material.
In addition, both courts and regulators have long recognized a category of material information called “forward looking” information. These are statements made about the future, particularly from management. For example, forms S-1 and 10-K–the gold standard disclosure documents–have sections called “Management Discussion and Analysis,” in which management is expected to discuss its views of the future of the business. The classic forward-looking statement is the projected earnings per share for the coming quarter, but forward-looking information often includes information about the long term outlook for the business. That makes sense. Many investors, notably pension funds and retirement funds, have decades-long investment horizons. Moreover, investors often want to hear managers’ views about the future as it pertains to the company itself, its competitors, the regulatory environment, and macroeconomic and political developments. Such discussions can be found in many disclosure documents.
State law has adopted the same TSC standard when considering the information that must be disclosed to shareholders. For example, Delaware courts have adopted the TSC standard in determining what information must be disclosed to stockholders. As a result, Delaware requires directors to provide shareholders with all material information and to communicate this information in a balanced and truthful manner.
The fiduciary duty bill defines materiality differently from federal and state law. Consequently, that sets up a clash between the kinds of information the bills allow fiduciaries to consider, and the kinds of information the securities laws require companies and directors to disclose. The ALEC definition of materiality clashes with the federal and state definition in two primary ways: substance and time horizon.
First, as to substance, it defines materiality as referring only to “financial return and financial risks of an existing or prospective investment … and rights appurtenant to securities.”
It also specifically excludes, “furthering environmental, social, political, ideological, or other goals or objectives.” Consider, in practice, a fiduciary reviewing a standard form 10-K document in deciding whether to invest in a public company, or whether to alter the investment allocation to said company. That 10-K is likely to contain disclosures related to corporate governance (discussed above), climate change or human capital management under existing SEC regulations. Under the fiduciary duty bill, has the trustee considered material or immaterial information in making that investment decision? Could the trustee be subject to suit by a state attorney general for reviewing a document with such disclosures? If the fund alters its investment in the company that filed the 10-K, is that trustee subject to investigation and perhaps liability for considering information that ALEC deems not material but the Supreme Court deems material? Almost any attempt by a state to offer a different definition of materiality than that provided by the Supreme Court and federal securities laws is bound to ensnare fiduciaries in a legal trap.
The dilemma is potentially even greater under state law. Consider a fiduciary who owns stock in a target company reviewing whether to vote in favor of a merger proposal. Suppose that the target company has significant potential environmental risks in its business, but that these risks are not yet quantified with any degree of specificity. Is the trustee allowed to consider these environmental risks when deciding how to vote on the merger proposal? If the company’s board discloses that the risk of potential environmental liability was one of the factors that led the board to consider a sale can the fiduciary then consider this factor? What if the disclosure states (as is often the case) that the target board did not put a specific valuation on any particular factor but weighed all of the issues as a whole; is the fiduciary allowed to also make the same analysis even though there is no disclosure in the documents provided to shareholders about the specific financial risk from the environmental issues?
Consider also that ALEC’s definition of materiality excludes “events…[that] are systemic, general, or not investment-specific in nature.” Every state pension code that we are aware of quite sensibly requires that pension funds be diversified. Indeed, the fiduciary duty bill itself includes a provision imposing this requirement. Diversified investors invest comparatively small sums across a broad array of investments and asset classes for purposes of obtaining the overall market rate of return, at low cost. Almost by definition, diversified investors are systemic investors. They rarely make firm-specific bets, at least not in public markets. Doing the research required to make such bets is expensive, time consuming, and undermines one of the primary benefits of diversification: obtaining returns at low cost.
Here’s a contemporary hypothetical: imagine if the market is anticipating that the federal reserve will change interest rates. A federal reserve interest rate change is most certainly “systemic.” Arguably, it affects every investment in the world. Would making investment decisions that assess or anticipate federal reserve rate changes be consideration of immaterial information under the fiduciary duty bill? Yes, on the face of it. Many state pensions also have target rates of return. Interest rates play a key role in meeting and setting targets.
Of course, similar arguments are true for climate change, one of many systemic issues. Investors incorporating climate change into their investment decisions are a clear target of this legislation. As many practitioners have pointed out, factoring climate change into investment is simply sound investment practice. But even if somehow climate-change driven investment were clearly just political and could be severed from other broad investment considerations, the language of this legislation is so overbroad as to eliminate all “systemic” considerations, in direct conflict with diversification requirements. Political instability or non-adherence to the rule of law could easily be considered “systemic” considerations. The same is true of “general” considerations or considerations that are not “investment specific.” The language of the bill does much more than put legal pressure on investment choices that consider long term climate risks. It threatens investment practices and considerations that are core to maintaining a diversified portfolio.
Just as vague and perplexing from a legal perspective is excluding from the definition of materiality, “any portion of a risk or return that primarily relates to events that… involve a high degree of uncertainty regarding what may or may not occur in the distant future.” Is there a more uncertain phrase than “high degree of uncertainty?” “Distant future” might be a good candidate.
Pension funds like those targeted by these bills can have 50-year investment time horizons. A fulltime employee could start work at age 18 and begin collecting her pension at age 68. Is it a breach of fiduciary duty for trustees to consider evidence of risks that might materialize in fifty years, when a significant cohort of current pension participants will retire? What about 25 years? Is a prudent fiduciary not supposed to consider risks that may occur in 25 years, when many of the current plan participants will be needing to rely on the assets of the fund? Both the Department of Defense and the United States Army have specifically identified climate change as an existential threat and have adopted plans to deal with it through 2050.
How about investments in 30-year U.S. Treasury bonds? Investments in such bonds are considered the safest long term investments in the market in part because the U.S. federal government is perceived to be the most stable institution in the world. Demand for such treasuries increases in financial crises because investors buy them in times of systemic uncertainty and fear of “what may or may not occur in the future,” to quote what ALEC seeks to ban. Should buying safe investments in the middle of a financial crisis, or in anticipation of one, or devoting some part of the portfolio to treasuries as a hedge against long term unforeseen risks violate fiduciary duty? This is imprudent. Yet the bill could create fiduciary risk for trustees making such choices.
This brings us to yet another aspect of how materiality is defined in the securities laws. In another seminal case, Basic v. Levinson, the Supreme Court established the test for materiality of so-called “speculative information.” Acknowledging the reality that reasonable investors rely upon speculative information in making investment choices, the Court laid out a test for when such information rises to the level of being material. The “probability-magnitude” test tells us that, to determine the materiality of speculative information, one multiplies the probability of the event times its magnitude. Thus, a very low probability event that might result in, say, acquisition of the company–its legal termination–could still be material because of the event’s significant magnitude. Similarly, higher probability but still speculative events could be material, even if the magnitude of the event is considerably smaller than an acquisition. Of course, such determinations are fact and circumstance specific. Reasonable investors might disagree.
Here, too, the ALEC definition of materiality flatly contradicts the Supreme Court definition. Under Basic v. Levinson, the very thing that ALEC seeks to exclude from materiality could be material. Specifically, “any portion of a risk or return that primarily relates to events that have a high degree of uncertainty regarding what may or may not occur in the distant future and that… [is] systemic, general, or not investment-specific in nature” could easily be material under the probability-magnitude test. For example, significant negative impacts of climate change on an oil company’s ability to sell its product could easily meet and exceed the magnitude of merely being acquired, even if some of the events triggered by climate change are low probability. (And most experts see them as inevitable.) But the ALEC legislation automatically defines such events as falling outside the bounds of materiality. Federal courts have allowed that events for which there is a high degree of uncertainty may be material, depending upon their magnitude.
The serial disconnect between federal law governing materiality and the definition in the fiduciary duty bill is a liability trap for fiduciaries connected with covered pension funds. One might rationally question why anyone would want to serve as a fiduciary or trustee under these circumstances, and we would expect insurance costs to rise in states where the fiduciary duty bill is adopted.
The Self-Defeating Boycotts Bill
The “Eliminate Political Boycotts Act” was drafted under ALEC’s auspices and made available until recently as a draft policy on ALEC’s web site ; however, ALEC’s board recently declined to approve it and sent it back for further review by the organization’s energy task force, reportedly after lobbying by the American Bankers Association and state banking associations. It is therefore possible that ALEC will end up approving a model bill that differs from the one we discuss or not approving any bill based on the boycott concept. An earlier version of the boycott bill, also drafted by ALEC, that had a somewhat narrower focus, the Energy Discrimination Elimination Act, was enacted in Texas in 2021.
The boycott bill shifts the targeted decision maker from public fund fiduciaries to companies doing business (or seeking to do business) with governmental entities in a state. The boycott bill would require companies to attest, as a condition of doing business with any governmental entity, that they do not engage in economic boycotts and will not do so during the term of the contract. An economic boycott is defined as “without an ordinary business purpose, refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, limit commercial relations with, or change or limit the activities” of a company, because the company is in the fossil fuel, timber, mining or agriculture industries; does business with a company in one of those industries; has not set greenhouse gas (“GHG”) reduction targets; or has insufficient board or workforce diversity.
“Without an ordinary business purpose” is doing a lot of work in that definition, so it’s worth examining. The bill defines an ordinary business purpose as not including “any purpose to further social, political, or ideological interests.” So, like the definition of non-pecuniary in the fiduciary duty bill, this definition of ordinary business purpose turns on the company’s subjective intention, as do some of the actions that could constitute a boycott. The definition includes language similar to that found in the fiduciary duty bill allowing a company’s purpose to be inferred based on evidence “including, but not limited to (i) branding, advertising, statements, explanations, reports, letters to clients, communications with portfolio companies, statements of principles, or commitments, or (ii) participation in, affiliation with, or status as a signatory to, any coalition, initiative, joint statement of principles, or agreement.”
Applying these provisions would be fraught. The scope of “refusing to deal with” a company is undefined. Would declining to buy an oil company’s stock, or selling stock one already owns, qualify, despite the fact that transactions in a public company’s already-issued stock do not involve the company? It seems likely, given the reference to divestment in the boycott bill’s recitals. If the answer depends on the company’s motive, an asset manager could find itself having to prove that it made the call to sell an oil major’s stock based on financial considerations, rather than in an effort to harm the company or pressure it to change its behavior. Even diversified investors regularly sell (and buy) oil stocks to rebalance their portfolios. Membership in any group or initiative that has made a statement, published materials or otherwise given a platform to the role of investors in changing corporate behavior could complicate this process and increase compliance risk.
The broad language of the boycott definition suggests that an asset manager engages in a boycott if it takes action–which could include voting proxies–pursuant to a client’s investment strategy focused on convincing companies to change some aspect of their behavior. This would apply even though the manager is executing the client’s strategy and not acting on its own account. Read literally, this definition could disqualify any asset manager that advises a single fund or client that limits investments in fossil fuel companies or uses proxy voting to influence company behavior on climate or diversity.
While the definition may not end up being applied to bar a manager with a single fossil fuel free fund, an FAQ prepared by Texas Comptroller Glenn Hegar’s office indicated that he was using the relatively low cutoff of 10 funds whose investments in oil and gas are limited. He placed BlackRock on the initial list of boycotters despite its $100 billion in Texas fossil fuel company investments. The US SIF Report on US Sustainable Investing Trends 2022 reports that $1.2 trillion in assets under management by money managers are subject to restrictions related to fossil fuels alone, as were $2.3 trillion in institutional asset owners’ investments, so it is likely that all large asset managers would advise such funds or clients, or both. Barring a meaningful number of large asset managers from competing for state business would almost certainly reduce competition and increase costs for taxpayers.
Even outside the realm of such specific strategies, an asset manager might conclude that the fiduciary duties it owes to clients–including duties under ERISA if the manager is a fiduciary for an ERISA-governed plan–require it to take an action that would qualify as an economic boycott. In this way, the boycott bill could force asset managers to choose between satisfying their fiduciary obligations and remaining eligible to contract with governmental entities. Ironically, one of the recitals justifies the bill on the ground that economic boycotts may violate “fiduciary laws.”
Voting proxies as an effort to change or limit a portfolio company’s activities could qualify as a boycott. For example, an asset manager that voted in 2021 for Engine No. 1’s dissident director candidates at ExxonMobil, who campaigned in part on the company’s failure to prepare for the low-carbon transition, would likely be considered a boycotter. Comptroller Hegar has stated that his office is considering incorporating proxy voting into the boycott list methodology.
An organization’s branding and advertising are ill-suited to serve as possible indicia of prohibited intent, given that they tend to operate more symbolically and figuratively than literally. Would that provision support an inference regarding intent based on the appearance of “green” symbols like a leaf or tree in a company’s logo or the fact that an asset manager advertises in a publication focused on impact investing or sponsors a responsible investing conference? Any larger asset manager would likely be trying to appeal to clients and prospects with various sensibilities, so it is unclear why branding and advertising should be assumed to represent a manager’s approach to its entire business.
The provision allowing inferences regarding purpose to be drawn from participating in groups and signing on to principles makes no more sense in the boycott context than it does when trying to discern a fiduciary’s purpose. Such initiatives have diverse memberships, and their activities and materials are not well-suited to explain individual investing and business decisions. But Texas and others are seriously overplaying their hand. Large as Texas is, the sum total of pro- or at least neutral-ESG assets is far larger. Rather than stopping anything that might remotely be considered a pro-ESG behavior, its legislation is more likely to stop fiduciaries and investment managers from doing business with Texas, as has already started happening.
True, the boycott bill would excuse compliance with the certification requirement if enforcing it would “prevent the governmental entity from obtaining the supplies or services to be provided in an economically practicable manner.” No threshold or other guidance is supplied for “economically practicable manner,” but one can imagine a number of scenarios that could support reliance on the carveout. A company could inform the governmental entity that it will charge more for its goods or services if it is required to complete the attestation, perhaps to reflect increased costs associated with monitoring the company’s business activities for potential boycotts. Or a governmental entity might find that increased delays resulting from the attestation requirement are imposing economic costs. Alternatively, and less directly, the attestation requirement could limit the universe of willing contracting parties, reducing competition and driving up prices. Absent guardrails, this safety valve could allow state officials to award business to politically favored firms on the boycotter list while punishing firms that are on the outs with the state fiscal officer’s party.
The fact that the drafters saw the need for such a generous carveout shows that they contemplated the boycott bill inflicting economic harm on governmental entities. Such harm has already materialized: A January 2023 study by two Wharton professors noted that Texas’ 2021 enactment of two bills patterned on ALEC’s Energy Discrimination Elimination Act (one focused on energy and the other on firearms) led five large banks that underwrote 40% of Texas’ municipal debt to exit that market. The loss of these banks diminished competition and deprived issuers of access to the departed banks’ more extensive distribution networks, adding $300 to $500 million to borrowing costs on the debt issued in the eight months after the bills took effect. A more recent analysis estimated that similar bills would impose up to $700 million in higher municipal borrowing costs in six other states considering similar legislation. In addition to municipal underwriting services, boycott bills would affect the provision of banking, treasury, and investment management services to governmental entities. In Indiana, where a boycott bill has been introduced, a fiscal impact statement for the bill estimated that it could lower pension fund returns by up to $7 billion over the next 10 years. Although it involves a law requiring in-state public funds to divest shares they own in companies deemed boycotters, rather than the boycott bill described above, a recent conflict between a Kentucky public pension system and the state’s Treasurer illustrates the tensions created when legislation empowers non-fiduciaries to make decisions affecting public funds. Legislation enacted last year requires Kentucky’s Treasurer to compile a list of firms deemed to be energy company boycotters; state agencies owning stock in those firms are then required to notify them that the agencies will divest unless the firms cease their boycotts. The list the Kentucky Treasurer produced in January included BlackRock and 10 other financial institutions. The Kentucky County Employees Retirement System’s board recently approved a letter in which the fund informed the Treasurer that it believed that sending such notifications would violate the fund’s fiduciary duties.
The boycott bill could also create tensions between public companies’ certifications and their disclosure obligations. Early last year, the Fort Worth, Texas SEC office asked firms that have underwritten municipal debt in Texas to provide the basis for public disclosures they have made on ESG-related matters. A Reuters report at the time indicated that the agency was “scrutinizing potential conflicts between what the underwriters have told investors versus Texas regulators about their policies on doing business with gunmakers and fossil fuel companies.”
The Proxy Voting Reform
Most state, city, and county public pension funds are served by a combination of two types of trustees: elected officials (or their appointees) and fund participants and beneficiaries. That pattern is similar to federal rules under Taft-Hartley, which divide boards of trustees evenly between employer and worker representatives. Empirical evidence shows that the latter type of trustee correlates with better outcomes for funds. For example, two empirical studies have shown that participant/beneficiary trustees correlate with better fund returns, outperforming politicians and their appointees. These results make sense. Participant and beneficiary board members have “skin in the game.” It’s their own retirement funds, and those of their coworkers, family members, and friends, that are at stake in fund investment decisions. Not true for politicians and their appointees, who report to much broader constituencies, have numerous interests at stake beyond fund contributions and returns, and have far shorter time horizons.
The voting authority reform in the fiduciary duty bill removes final say over proxy voting from boards of trustees with worker representatives and hands it to “a State official politically accountable to the people of [State name].” In other words, it hands that power to precisely the kind of fiduciary the evidence shows correlates with worse outcomes for pension funds. It is but one more example of how this effort flies in the face of both logic and evidence.
We think the retreat of five large banks from Texas’s municipal bond market in the aftermath of its anti-ESG legislation is a harbinger of things to come for any state that follows suit. This memo explains why. The boycott bill and the fiduciary duty bill dramatically increase liability risk for plan fiduciaries and service providers without providing any corresponding or even off-setting benefits to fiduciaries or their members. The pecuniary/non-pecuniary distinction is unworkable. That’s why it was widely repudiated by the investment community when the Trump DOL moved to impose it. The definition of materiality clashes with the legal standard under U.S. securities laws. Too many other legal terms are vague. These flaws filter down to ancillary parts of the bill like proxy voting. Even if one believed that the political goals of the anti-ESG legislation created some type of financial benefit to plan members—and there is no compelling evidence to support such a claim—the legal uncertainty it creates for key decision makers is likely to far outweigh any potential benefits from the legislation.
1See Karin Rives, Texas bans 10 banks, 348 investment funds over fossil fuel policies, S&P Global: Market Intelligence (Aug. 24, 2022), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/texas-bans-10-banks-348-inve stment-funds-over-fossil-fuel-policies-71842914 (“Texas is banning 10 large banks and 348 investment funds for allegedly boycotting fossil fuel-based energy companies critical to the state’s economy, a move critics said could cost taxpayers in the Lone Star State hundreds of millions annually in higher interest costs.”).(go back)
2See Andrew Ramonas & Clara Hudson, ESG Foes in States, Congress Ready Attacks on ‘Woke’Investing , Bloomberg Law (Nov. 21, 2022), https://news.bloomberglaw.com/securities-law/esg-foes-in-states-congress-ready-attacks-on-woke-investing (“[Kentucky’s] attorney general is seeking documents over ESG practices as well as what the [financial institutions] have agreed to as members of climate initiatives including the investor-led Climate Action 100+.”).(go back)
3See American Legislative Exchange Council, https://alec.org/.(go back)
4As of February 1, 2023, it could be found at https://alec.org/model-policy/state-government-employee-retirement-protection-act/(go back)
5Morgan Lewis, Anti-ESG Legislation: Standalone State Chart (Aug. 25, 2022) (data accurate as of Dec. 1, 2022), https://www.morganlewis.com/-/media/files/document/2022/anti-esg-legislation-standalone-state-chart.pdf.(go back)
6We used the text of this bill that could be found until January 2023 at https://alec.org/model-policy/eliminate-political-boycotts-act/. As discussed below, although it has been removed from ALEC’s web site, possibly pending further review. The text we discuss is available here: on the website of the Heritage Foundation at https://www.heritage.org/article/eliminate-economic-boycotts-act.(go back)
7Supra note 7. West Virginia (energy), Kentucky (energy), Oklahoma (fossil fuels), Texas (fossil fuels and firearms), Wyoming (firearms)(go back)
8Supra note 7. Idaho (energy), Indiana (energy), Kentucky (firearms), Louisiana (energy and firearms), Oklahoma (firearms), Minnesota (energy), Ohio (firearms), South Carolina (energy), South Dakota (firearms), and Utah (energy)(go back)
9For example, a recent Swiss Re study shows that by mid-century the world stands to lose 10% of total economic value from climate change. See Swiss Re Institute, The Economics of Climate Change, Swiss Re Insitute (Apr. 2021), https://www.swissre.com/institute/research/topics-and-risk-dialogues/climate-and-natural-catastrophe-risk/expertisepublication-economics-of-climate-change.html. Diversified investors need to take these financial risks into account to satisfy their fiduciary obligations to their stakeholders and to maximize risk-adjusted returns.(go back)
10News Release, U.S. Dept. of Labor, U.S. Department Of Labor Announces Final Rule To Protect Americans’ Retirement Investments (Oct. 30, 2020), https://www.dol.gov/newsroom/releases/ebsa/ebsa20201030 (“The amendments require plan fiduciaries to select investments and investment courses of action based on pecuniary factors – i.e., any factor that the responsible fiduciary prudently determines is expected to have a material effect on risk and/or return of an investment based on appropriate investment horizons consistent with the plan’s investment objectives and funding policy.”).(go back)
11Letter from Riley Moore, Treasurer, State of West Virginia, to U.S. Banking Industry (Nov. 22, 2021), https://www.wvtreasury.com/Portals/wvtreasury/Fossil%20Fuel%20Banking%20Letter%20Nov%2022.pdf.(go back)
12Letter from Louisiana State Treasurer John Schroder to Blackrock CEO Larry Fink (Oct. 5, 2022). https://www.ai-cio.com/news/louisiana-divests-nearly-800-million-from-blackrock-to-protect-fossil-fuel-industry/.(go back)
13See David Webber, The Rise of the Working Class Shareholder (Harvard University Press:2018).(go back)
14Jeffrey N. Gordon, Systematic Stewardship, 47 J. of Corp. L. 627 (2022); Madison Condon, Externalities and the Common Owner, 95 WASH. L. REV 1 (2020).(go back)
15See,e.g., Dame Vivian Hunt et al., Delivering through diversity, McKinsey & Company (Jan. 18, 2018), https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/delivering-through-dive rsity(go back)
16See, e.g., Alan Murray, New SEC Chief Tackles a Big One: CEO Pay, Wall St. J. (Sept. 21, 2005), https://www.wsj.com/articles/SB112725109358146537; Russell Whelton, Ef ects of Excessive CEO Pay on U.S. Society, The Ruth & Ted Braun Awards for Writing Excellence at Saginaw Valley State University (2006), https://www.svsu.edu/media/writingprogram/activedocs/Whelton_article.pdf (examining the effect CEO compensation has both within the company and on society, including its contribution to cheating culture).(go back)
17See Staff Legal Bulletin 14E (Oct. 27, 2009) (“Recent events have underscored the importance of this board function to the governance of the corporation. We now recognize that CEO succession planning raises a significant policy issue regarding the governance of the corporation that transcends the day-to-day business matter of managing the workforce.”).(go back)
18See, e.g, Marchand v. Barnhill, 212 A.3rd 805 (Del. 2019); In re Clovis Oncology, Inc. Derivative Litigation, 2019 WL 4850188 (Del. Ch. Oct.1, 2019).(go back)
19Jeffrey Sonnenfeld et al., It Pays for Companies to Leave Russia (May 31, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4112885(go back)
20See, e.g., Witold Henisz et al., Five Ways that ESG Creates Value, McKinsey Quarterly (Nov. 2019), https://www.mckinsey.com/~/media/McKinsey/Business%20Functions/Strategy%20and%20Corporate%20Finance/ Our%20Insights/Five%20ways%20that%20ESG%20creates%20value/Five-ways-that-ESG-creates-value.ashx.(go back)
21See Karin Rives, Climate resolutions top ‘unprecedented’ number of shareholder proposals in 2022, S&P Global Market Intelligence (Apr. 4, 2022), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/climate-resolutions-top-unprec edented-number-of-shareholder-proposals-in-2022-69641049 (“ The closely watched Proxy Preview published by three investor advocacy groups in March  reported that climate-related proposals, at 21%, comprised the largest share of 529 shareholder resolutions filed at that point.”).(go back)
22One need only look at the divisions in the Republican Party over the election of House Speaker Kevin McCarthy to see that not all Republicans have identical views, even on a critical issue such as who should be the House Speaker, as well as other issues. See, e.g., Carl Huse, Speaker Fight Reveals a Divided and Disoriented House Majority, N.Y. Times (Jan. 6, 2023), https://www.nytimes.com/2023/01/03/us/house-speaker-mccarthy-election.html.(go back)
23See CII Advocacy Priorities, Council of Institutional Investors (2022), https://www.cii.org/advocacy_priorities (listing thirteen priorities, divided into three categories: investor rights and protection, corporate disclosure, and market system and structure)(go back)
24See, e.g., Principles for Responsible Investment, Investing with SDG Outcomes: A Five-Part Framework (2020), https://www.unpri.org/download?ac=10795.(go back)
2529 C.F.R. sec. 2550.404c-5(e)(4).(go back)
2629 C.F.R. sec. 2550.408g-1(b)(3)-(4).(go back)
27See Financial Factors in Selecting Plan Investments, 85 Fed. Reg. 72846, 72856 (Nov. 11, 2020), https://www.federalregister.gov/documents/2020/11/13/2020-24515/financial-factors-in-selecting-plan-investments(go back)
28See 15 U.S.C.A. § 77j (West).(go back)
29See 15 U.S.C.A. § 77e (West).(go back)
30TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).(go back)
31See Press Release, Securities and Exchange Commission, Rules to Enhance and Standardize Climate-Related Disclosures for Investors (Mar. 21, 2022), https://www.sec.gov/news/press-release/2022-46.(go back)
32See Form 10-K (sec.gov), https://www.sec.gov/files/form10-k.pdf; Form S-1.pdf (sec.gov), https://www.sec.gov/files/forms-1.pdf(go back)
33See, e.g., Rosenblatt v. Getty Oil Co., 493 A.2d 929, 944 (Del. 1985); Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992).(go back)
34Employee Retirement Income Security Program, 29 U.S.C.A. § 1104 (West) (“A fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries … by diversifying the investments of the plan so as to minimize the risk of large losses.”).(go back)
35BlackRock Investment Institute, Launching Climate-Aware Return Assumptions, https://www.blackrock.com/us/individual/insights/blackrock-investment-institute/investing-in-climate-awareness; Emily Thomas, Four Ways Investors Can Act on Climate Change, Morgan Stanley (Nov. 2022), https://www.morganstanley.com/articles/risks-and-opportunities-of-climate-change; Sarah Kapnick, How Can I Invest For Climate Change?, J.P. Morgan(Feb. 17, 2022), https://www.jpmorgan.com/wealth-management/wealth-partners/insights/how-can-i-invest-for-climate-change(go back)
36Department of the Army, Office of the Assistant Secretary of the Army for Installations, Energy and Environment. February 2022. United States Army Climate Strategy. Washinfton, DC. available at https://www.army.mil/e2/downloads/rv7/about/2022_army_climate_strategy.pdf; David Vergun, Defense Secretary Calls Climate Change an Existential Threat, U.S. Department of Defense (Apr. 22, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2582051/defense-secretary-calls-climate-change-an-exi stential-threat/.(go back)
37Basic Inc. v. Levinson, 485 U.S. 224, 238 (1988).(go back)
38See Sec. & Exch. Comm’n v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968) (“In each case, then, whether facts are material … will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.”).(go back)
39Since we began writing this paper, ALEC has removed this draft policy from its website. It appears, however, on the website of the Heritage Foundation at https://www.heritage.org/article/eliminate-economic-boycotts-act.(go back)
40Debra Kahn & Jordan Wolman, Cracks in the anti-ESG foundation, Politico (Jan. 24, 2023), https://www.politico.com/newsletters/the-long-game/2023/01/24/cracks-in-the-anti-esg-foundation-00079204.(go back)
41ALEC board rejects model anti-ESG bill, ABA Banking Journal (Jan. 23, 2023), https://bankingjournal.aba.com/2023/01/alec-board-rejects-model-anti-esg-bill/(go back)
42Chirs McGreal, Rightwing group pushing US states for law blocking ‘political boycott’ of firms, The Guardian (Nov. 11, 2022), https://www.theguardian.com/us-news/2022/nov/11/alec-anti-political-boycott-state-legislation.(go back)
43Although this draft policy is no longer available on ALEC’s web site, it can be found at https://web.archive.org/web/20211204022222/https://www.alec.org/model-policy/energy-discrimination-elimination -act-2/.(go back)
44Comptroller of Public Accounts, List of Financial Companies that Boycott Energy Companies; Frequently Asked Questions, https://subscriber.politicopro.com/eenews/f/eenews/?id=00000183-0fc1-d1c5-a1db-bfe5da300001.(go back)
45Catherine Clifford, Texas accuses 10 financial companies, including BlackRock, of ‘boycotting’ energy companies and orders state pension funds to divest from holdings, CNBC (Aug. 25, 2022), https://www.cnbc.com/2022/08/25/texas-says-10-companies-including-blackrock-boycotting-energy-.html.(go back)
46Fossil Fuel Divestment & Reinvestment, USSIF, https://www.ussif.org/climatereinvestment.(go back)
47Jennifer Hill & Svea Herbst-Bayliss, Exxon Loses Board Seats to Activist Hedge Fund in Landmark Climate Vote, Reuters (May 26, 2021), https://www.reuters.com/business/sustainable-business/shareholder-activism-reaches-milestone-exxon-board-vote-n ears-end-2021-05-26/.(go back)
48Comptroller of Public Accounts, List of Financial Companies that Boycott Energy Companies; Frequently Asked Questions, https://subscriber.politicopro.com/eenews/f/eenews/?id=00000183-0fc1-d1c5-a1db-bfe5da300001.(go back)
49David Garrett & Ivan Ivano, Gas Guns and Governments: Financial Costs of Anti-ESG Policies (May 30, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4123366.(go back)
51Memorandum from the Econsult Solutions Inc., On ESG Boycott Legislation in States: Municipal Bond Market Impact to The Sunrise Project (Jan. 12, 2023), https://econsultsolutions.com/wp-content/uploads/2023/01/Sunrise-ESG-boycott-Impact_FINAL.pdf; see also Matthew Winkler, Guess Who Loses After Florida and Texas Bar ESG Banks?, Bloomberg (Feb. 13, 2023), https://www.bloomberg.com/opinion/articles/2023-02-13/guess-who-loses-after-florida-and-texas-bar-wall-street-es g-banks#xj4y7vzkg (discussing how much more AAA-rated Florida is paying to issue municipal debt as compared to AA-rated California now that Florida excludes financial institutions that use ESG).(go back)
52Kate Aronoff, Republicans’Anti-ESG Crusade Could Hurt Retirees’ Savings, The New Republic (Feb. 10, 2023), https://newrepublic.com/article/170519/republicans-anti-esg-crusade-hurt-retirees-savings.(go back)
53Rob Kozlowski, Amid ESG Backlash, Kentucky Pension Fund Says it Will Not Divest From BlackRock, Pensions & Investments (Feb. 9, 2023), https://www.pionline.com/esg/amid-esg-backlash-kentucky-pension-fund-says-it-will-not-divest-blackrock; County Employees Retirement System, CERS Special Called Board Meeting 48 (Feb. 8 2023), https://www.kyret.ky.gov/About/Meeting-Calendar/Materials/February%208%202023%20CERS%20Board%20of% 20Trustees%20Meeting%20Material.pdf (containing the draft letter to the Kentucky State Treasuer detailing the pension plan’s position). That law contained a provision allowing an agency not to comply if doing so would violate its fiduciary obligations.(go back)
54Chris Prentis, SEC’s Texas Of ice Probes Banks Over Disclosures on Guns, Fossil Fuels, Reuters (Jan. 5, 2022), https://www.reuters.com/markets/us/exclusive-secs-texas-office-probes-banks-over-disclosures-guns-fossil-fuels-20 22-01-05/.(go back)
55Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. sec 186(c)(5)(B) (1947) .(go back)
56David Hess, Protecting and Politicizing Public Pension Fund Assets: Empirical Evidence on the Ef ects of Governance Structures and Practices, 39 U.C. Davis L. Rev. 187, 216-17 (2005) (“The results showed a significant and positive impact for having member-elected trustees, but no impact when the board consisted of approximately one half or more of such trustees.”); Roberta Romano, Public Pension Fund Activism in Corporate Governance Reconsidered, 93 Colum. L. Rev. 795, 826-27 (1993) (“The smaller the proportion of board members who are appointees and ex officio members, the higher a fund’s returns. This finding is consistent with the hypothesis that public pension funds experience political demands that adversely affect their performance. . . . Moreover, it should also be noted that election by beneficiaries, and not simply identity as a fund beneficiary, is the key to better fund performance: . . .”).(go back)
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