Sustainable, responsible, and impact (SRI) investing is a growing part of the investment landscape. Assets under management using SRI strategies now total $6.57 trillion, or $1 out of every $6 under professional management in the U.S., and these numbers are growing. 1 Between 2012 and 2014, SRI investing grew by more than 76%. 1 A recent survey indicates that the majority of millennials believe business can do more to address society’s challenges in the areas of climate change and resource scarcity. 2 This year Morningstar launched environmental, social, and governance (ESG) scores for global mutual and exchange-traded funds. 3 Despite the growing interest in SRI strategies, most retirement plans such as 401(k) plans were slow to incorporate ESG factors in the investment evaluation process. That may be about to change. Last fall the U.S. Department of Labor (DOL) published guidance that seems to open the door to greater use of SRI strategies in retirement plans. This guidance, in the form of an interpretive bulletin, steps back from prior DOL guidance that appeared to require plan fiduciaries to give economically targeted investments (ETIs) special scrutiny not required of other types of plan investments. While it is too early to tell whether the DOL bulletin will lead to increased adoption of SRI strategies by retirement plans, if you have clients or prospective retirement plan clients who have expressed an interest in SRI strategies, the new guidance provides an excellent vehicle for reexamining this issue. SRIs Defined A variety of terms in addition to “SRI” are used to describe an investment strategy that takes ESG factors into consideration to select investments that will have both competitive financial returns and a positive societal impact (e.g., socially responsible investing, sustainable investing). The DOL uses the term “economically targeted investments” (ETIs), which it defines as investments chosen because of “the economic benefits they create apart from their investment return to the employee benefit plan.” 4 Common types of investments include affordable housing, small business development, community services (child care, health care, education), job creation, expansion of existing businesses, and support of sustainable development initiatives. ETIs appear in a variety of forms including stocks, mutual funds, private equity, real estate, and fixed income. The “All Things Being Equal” Test The first formal position the DOL took on SRI investing, referred to by the DOL as ETIs, was in Interpretive Bulletin (IB) 94-1. In that bulletin, the DOL established the “all things being equal” test. This test had three prongs. A plan fiduciary can never subordinate the interests of plan participants and beneficiaries to a social purpose. The ETI must have an expected rate of return commensurate to rates of return of alternate investments “with similar risks available to the plan.” The ETI must otherwise be an appropriate investment considering the diversification of plan investments and the plan’s investment policy. As long as plan interests were not subordinated and the ETI could be expected to return a comparable rate of return as investments with similar risks, a plan fiduciary could offer ETI as an investment option. In effect, plan fiduciaries could use ESG factors to break a tie with an equivalent non-SRI option. Special Scrutiny Requirement Added in 2008 IB 94-1 remained the DOL’s principal guidance on the topic until it was replaced in 2008 by Interpretive Bulletin 2008-1. The 2008 pronouncement put SRI strategies in a much less favorable light as compared to the 1994 guidance. In the 2008 bulletin, the DOL said that consideration of non-economic, ESG factors Should be rare, and When an ETI is considered, the decision to invest should be documented in a manner that demonstrates compliance with ERISA’s rigorous standards. The 2008 bulletin seemed to require plan fiduciaries to give a level of attention and circumspection to SRIs not required for other plan investments. DOL Restores & Enhances the “All Things Being Equal” Test Recently, the DOL expressed its view that the 2008 bulletin was unduly discouraging plan fiduciaries from investing in ETIs or considering ESG factors, even when the investments were economically equivalent.5 To address these concerns, the DOL withdrew the 2008 bulletin and replaced it with IB 2015-01, guidance more aligned with the position it had communicated in 1994. In its Fact Sheet released with the 2015 bulletin, the DOL said that the “IB also acknowledges that in some cases ESG factors may have a direct relationship to the economic and financial value of the plan’s investment.” 5 The DOL went on to say that, “in such instances, the ESG issues are not merely collateral considerations or tie-breakers, but rather are proper components of the fiduciary’s primary analysis of the economic merits of competing investment choices.” 5 The effect of the DOL’s 2015 bulletin is significant. The three-prong test of IB 94-1 is restored. Plan fiduciaries do not have a “higher level” obligation to scrutinize and document ETIs than they do for other plan investments. ESG factors can be taken into account in determining the economic benefit of investments and to find superior investments. Challenges & Opportunities If you have retirement plan clients or prospective clients who are interested in SRI strategies, IB 2015-01 provides an excellent vehicle for discussing whether SRI strategies are a good fit for their retirement plan’s investment portfolio. Following are some possible discussion points to include in your SRI discussions. Discuss whether your client wants to incorporate ESG factors in their investment evaluation process . Do members of the plan’s investment committee believe that ESG factors will materially impact the financial performance of the plan’s investments? Are there demographic and diversity factors at play that will affect the decision to provide ESG-driven funds such as a high concentration of Millennials? Do members of the committee need additional education regarding SRI investing? Evaluate how an SRI strategy would impact the existing fund lineup . How many investment options are currently provided to participants? Where in the fund lineup would it make sense to add an SRI strategy? Consider how to integrate SRI beliefs and expectations into the existing investment policy statement (IPS) and investment due diligence process . Does the IPS need to be adjusted to incorporate ESG considerations? Will there need to be any changes in the process for selecting and monitoring the plan’s investment menu? Does the documentation retained by the investment committee need to be modified or expanded? These basic inquiries will be a good starting point for discussing SRI strategies with plan sponsors. As with all investment decisions, you play a critical role in helping your plan sponsor clients define and pursue investment objectives that are right for their plans. Clients that elect to adopt an SRI strategy will need your support to Define their investment objectives Develop or amend the IPS that sets out clear rules and metrics for evaluating investment return and risk equivalencies Identify and evaluate investment opportunities Review and evaluate SRI fund prospectuses Document the SRI decision-making process, as they do with other plan investments Educate plan participants about SRIs Footnotes US SIF Foundation, Report on US Sustainable, Responsible, and Impact Investing Trends 2014 Deloitte, The Deloitte Millennial Survey , January 2014 Morningstar, Inc. Press Release, “Morningstar Introduces Industry’s First Sustainability Rating for 20,000 Funds Globally, Giving Investors New Way to Evaluate Investments Based on Environmental, Social, and Governance (ESG) Factors,” March 1, 2016 Department of Labor, Interpretive Bulletin 2015-01, October 26, 2015 Department of Labor, Fact Sheet: “Economically Targeted Investments (ETIs) and Investment Strategies that Consider Environmental, Social and Governance (ESG) Factors,” October 22, 2015 FOR INVESTMENT PROFESSIONAL, BROKER-DEALER AND INSTITUTIONAL USE ONLY. NOT FOR USE BY OR DISTRIBUTION TO THE GENERAL PUBLIC. This material is for informational purposes only and nothing herein constitutes investment, legal, accounting or tax advice. Information is obtained from sources deemed reliable, but there is no representation or warranty as to its accuracy, completeness or reliability. All information is current as of the date of this material and is subject to change without notice. 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