DOL Proposes Removing Trump-Era Barriers to Consideration of Climate Change When Managing Pensions and Retirement Savings

On October 14, 2021, the Department of Labor’s Employee Benefits Security Administration published a proposed amendment to the Investment Duties regulation that would allow fiduciaries to consider climate risks, along with other environmental, social, and governance factors, when they select investments and exercise shareholder rights. The rule, proposed under the Employee Retirement Income Security Act of 1974 (“ERISA”), would apply to the selection of investments and investment courses of action, including selecting qualified default investment alternatives, exercising shareholder rights, such as proxy voting, and the use of written proxy voting policies and guidelines. This proposed rule would remove regulatory barriers established in 2020 that prevent fiduciaries to consider the above-listed factors when acting under ERISA. Prior to the 2020 rule, the Department of Labor had relied on non-regulatory guidance to permit ERISA fiduciaries to conduct investment and shareholder rights activities in a manner that reflected climate change and other considerations.

Comments on the proposed rule may be submitted until December 13, 2021.