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Illustration: Sarah Grillo/Axios

It's hardly the biggest regulatory fight of the Trump era, but there's an important battle raging over plans to restrict sustainable investing that also distills the energy and climate politics of the moment.

Driving the news: The Labor Department is planning to limit private retirement plan managers' leeway to invest based on ESG — environmental, social and governance — factors.

  • The comment period on the draft regulation ended yesterday. It requires administrators to make investments "based solely on pecuniary factors" and limits the ability to fit ESG under that umbrella.

There are a number of factors at play ...

1. It potentially tees up a battle in the next Congress.

  • There's opposition among Democratic lawmakers, including Sen. Elizabeth Warren, who is influential on financial policy, and the chairman of the House Education and Labor Committee.
  • That's important because regulations finalized very late in a presidential administration can be overturned using something called the Congressional Review Act, and resolutions under the act are immune from Senate filibusters.
  • If Democrats control Congress and the White House next year, other energy- and environment-related rules finalized in the waning months of Trump's presidency could face CRA fights.

2. It's the latest example of how Trump administration policies, like bailing on the Paris Agreement, at times go beyond what even some powerful K Street players want.

  • Consider that the powerful American Bankers Association, in new comments, calls the plan "unnecessary," says it's a potential burden, and proposes it be scrapped.
  • Asset management behemoth BlackRock, which recently increased its focus on sustainability, expressed concerns in new comments and urged more Labor-industry discussion, saying it “creates an overly prescriptive and burdensome standard that would interfere with plan fiduciaries’ ability and willingness to consider financially material ESG factors."
  • Meanwhile, the U.S. Chamber of Commerce's comments support the idea of rulemaking on ESG, but warns that the plan as written could have "unintended consequences" and urges a bunch of changes.
  • And, it does have some backing from conservative interests like the Competitive Enterprise Institute, signaling the fault lines between the right's activists and corporate interests on some topics.

3. The Labor Department is not typically seen as a climate policy battleground, but this tussle shows that policies across the government can be climate-related.

  • Comments filed yesterday by the sustainable investment group Ceres calls the plan based on "outdated" thinking about ESG.
  • Ceres argues that considering ESG factors can help avoid risky investment in companies most vulnerable to global warming and policies that transition from fossil fuels.

The intrigue: Getting back to the proposed investing rule, which Axios' Felix Salmon covered here:

  • Labor Secretary Eugene Scalia says there's evidence that "when investments are made to further a particular environmental or social cause, returns unsurprisingly suffer."
  • His WSJ opinion piece promoting the plan argues that it "reminds plan providers that it is unlawful to sacrifice returns, or accept additional risk, through investments intended to promote a social or political end."

Yes, but: Multiple experts say ESG funds are a good bet! A recent Morningstar analysis found that over half of ESG funds outperformed their conventional peers over the last decade.

What they're saying: Experts with the firm Seyfarth Shaw, writing in Bloomberg Law today, point out...

  • "BlackRock found that more than three-quarters of sustainable indexes did better than traditional indexes in market downturns from 2015–2018."
  • "In addition, several leading investment management companies have found ESG investments outperformed traditional investments in 2020."

Go deeper

Ben Geman, author of Generate
Aug 21, 2020 - Energy & Environment

Biden emphasizes climate change during his biggest moment

Illustration: Sarah Grillo/Axios

Joe Biden emphasized climate change in his speech accepting the Democratic nomination Thursday night, as the days leading up to it offered fresh evidence of the problem's scale and tensions within his coalition.

Why it matters: It was a statement of priority in the most important speech of Biden's campaign to unseat President Trump, and the address mentioned the topic repeatedly.

Cuomo asks New York AG and chief judge to choose "independent" investigator into sexual harassment claims

New York Governor Andrew Cuomo at a press conference on Feb. 24. Photo: Seth Wenig/pool/AFP via Getty Images

A special counselor to New York Gov. Andrew Cuomo released a statement on Sunday asking the state's attorney general and chief judge to jointly pick an "independent and qualified lawyer in private practice without political affiliation" to investigate claims of sexual harassment against the governor.

The state of play: The statement is an about-face from Cuomo, who had previously selected a former judge close to a top aide to lead the investigation, the New York Times reported, a move that was widely criticized.

Republican Sen. Sasse slams Nebraska GOP for "weird worship" of Trump after state party rebuke

Sen. Ben Sasse, (R-Neb.) Photo: Andrew Harnik - Pool/Getty Images

The Nebraska Republican Party on Saturday formally "rebuked" Sen. Ben Sasse (R-Neb.) for his vote to impeach former President Trump earlier this year, though it stopped short of a formal censure, CNN reports.

Why it matters: Sasse is the latest among a slate of Republicans who have faced some sort of punishment from their state party apparatus after voting to impeach the former president. The senator responded statement Saturday, per the Omaha World-Herald, saying "most Nebraskans don't think politics should be about the weird worship of one dude."