"The [DOL] has consistently recognized in its various interpretive guidance that ERISA does not prohibit fiduciaries from making investment decisions that reflect ESG considerations depending on the facts and circumstances. Likewise, the interpretive guidance has recognized that the exercise of voting rights as well as other shareholder rights connected to shares of stock are fiduciary acts subject to ERISA's prudence and loyalty requirements. Differences in the tone and tenor in different Administration's iterations of sub-regulatory guidance during this period, however, have created confusion about these investment issues and have been described by stakeholders as an unhelpful regulatory game of 'ping pong.' ...

"The [Notice of Proposed Rulemaking] retains the core principle that the duties of prudence and loyalty require ERISA plan fiduciaries to focus on material risk-return factors and not subordinate the interests of participants and beneficiaries (such as by sacrificing investment returns or taking on additional investment risk) to objectives unrelated to the provision of benefits under the plan.... The NPRM, however, addresses the [DOL's] concern that the 2020 Rules have created uncertainty and are having the undesirable effect of discouraging ERISA fiduciaries' consideration of climate change and other ESG factors in investment decisions, even in cases when it is in the financial interest of plans to take such considerations into account. This uncertainty may deter fiduciaries from taking steps that other marketplace investors take in enhancing investment value and performance, or improving investment portfolio resilience against the potential financial risks and impacts associated with climate change and other ESG factors."  MORE >>