Multi-State Initiatives

Actions Promoting Integration of ESG Considerations in Investment Decisions

Letter to Congress on ESG

• Status
  • Published (12/14/23)

• Summary 
  • Led by Minnesota and signed by 18 Democratic attorneys general.

Letter to Congress on ESG

• Status
  • Published (12/14/23)

• Summary 
  • Explains why the use of ESG factors by fund managers in investing is prudent decision making and encourages congress to recognize the importance of considering such factors. Defends the current DOL rule on ESG. Discusses the implications of climate change.

Letter to Lawmakers on ESG

• Status
  • Published (3/1/23)

• Summary 
  • In response to the joint resolution introduced by Senator Mike Braun and Representative Andy Barr under the Congressional Review Act to overturn the  DOL 2022 rule, titled Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, Attorneys General from 21 states sent a letter to Senators and House Representatives in support of the DOL Final Rule and in opposition to the joint resolution. Their letter underscores the importance and legitimacy of the Final Rule and how the Final Rule is supported by data.

Letter to Lawmakers on ESG

• Status
  • Published (11/21/22)

• Summary 
  • In response to the August 4, 2022 letter from Republican State Attorneys General to the CEO of BlackRock, Democratic Attorneys General from the District of Columbia and 16 states including: California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon,  Rhode Island, Washington and Wisconsin sent a letter to Sens. Sherrod Brown and Patrick Toomey as well as Reps. Maxine Waters and Patrick Henry, voicing their support for consideration of ESG factors in investment decision-making. Their letter declares that public pension funds and their investment managers should be free to make choices that “maximize value for their beneficiaries in a manner that thoroughly evaluates risks and rewards” and “a thorough evaluation of risks and rewards may properly include consideration of ESG factors as part of a sound investment strategy.” 

Letter to SEC on ESG

• Status
  • Published (8/16/22)

• Summary 
  • In response to the June 17, 2022, letter from Republican State Attorneys General to the SEC, Democratic Attorneys General from 7 states including: California, Delaware, Illinois, Maryland, Minnesota, New York, and New Jersey sent a letter to the SEC in support of its proposed rulemaking “Enhanced Disclosures by Certain Investment Advisers and Investments Companies about Environmental, Social, and Governance Investment Practices.” Their letter emphasizes the importance of ESG investing in general and investors’ need for consistent, comparable, and reliable information on ESG investing. 

Actions Promoting Integration of ESG Considerations in Investment Decisions

We Are in It for the Long Term Letter

• Status
  • Published (9/14/22)

• Summary 
  • Democratic State Treasurers from 13 states including: California, Colorado, Delaware, Illinois, Maine, Massachusetts, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Washington, and Wisconsin, and the New York City Comptroller wrote a letter in response to states blacklisting asset managers arguing that this strategy “has real costs that ultimately impact their taxpayers."
  • The letter notes that these states and NYC are working together with “other investors and enlightened companies” to develop common goals resulting in “increased corporate responsibility, transparency, disclosure, and long term positive outcomes for the funds that [they] oversee, with greater benefits to employees and customers alike.” 

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

Joint Governors Policy Statement on ESG

• Status
  • Published (3/16/2023)

• Summary 
  • 19-state coalition led by Gov. DeSantis (R-FL), in response to the DOL's ESG rule, which commits to "protecting taxpayers from ESG influences across state systems" which may include blocking the use of ESG in all investment decisions at the state and local level, ensuring that only financial factors are considered to maximize the return on investment, protecting retirees and taxpayers alike. This may also include eliminating consideration of ESG factors by state and local governments when issuing bonds or prohibiting state fund managers from considering ESG factors when investing taxpayer money.
  • The coalition also may seek to ban the financial sector from considering so called “Social Credit Scores” in banking and lending practices aimed to prevent citizens from obtaining financial services like loans, lines of credit, and bank accounts. 
    
     

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

Republican AGs Petition Fifth Circuit to Reconsider Nasdaq Board Diversity Rule

• Status
  • Filed (11/28/23)

• Summary 
  • Republican State Attorneys General from 19 states filed an amicus brief in the Fifth Circuit calling for the court to reconsider its decision upholding Nasdaq rules aimed at increasing representation of women and minorities on corporate boards. In its petition, the state AG's request an en banc rehearing of the October ruling by a three-judge panel to correct “manifest errors” in the prior decision. The AG's claim the "Quota Rule" proposed by Nasdaq and approved by the SEC contravenes the U.S. Constitution, as well potentially undermines state law and policy on corporate board composition and racial and gender preferences by imposing explicit preferences on the basis of race, ethnicity, and sex. In particular, the brief says the type of race- and sex-based preferences at issue here are particularly crude because they are outright quotas rather than any sort of holistic analysis or plus factor.
  • While not specifically related to pensions, the AGs' amicus brief reflects the attitude of these state officials regarding the promotion of diversity in corporate governance, and it is relevant to better understanding state views on proxy voting.

Red States Appeal ESG 401(k) Rule Challenge to Fifth Circuit

• Status
  • Filed (10/26/23)

• Summary 
  • More than two-dozen GOP state attorneys general suing the department for promulgating the environmental, social, and corporate governance 401(k) investing regulation filed a notice of appeal Thursday in the US District Court for the Northern District of Texas.

Letter to Net Zero Financial Service Providers

• Status
  • Published (9/13/23), led by Jonathan Skrmetti (TN)

• Summary 
  • Expresses concerns over the alleged possibility that members' Net-Zero Insurance Alliance commitments violate antitrust and consumer protection laws, as the members collectively advance a "climate agenda" with their market power. 
  • Makes 11 follow-up requests for information, asking for responses by October 13, 2023.
    
     

Letter to Directors of BlackRock-Advised Mutual Funds

• Status
  • Published (7/16/23)

• Summary 
  • A 15-state coalition led by the Montana Attorney General is demanding answers from Blackrock-linked mutual fund directors regarding potential conflicts of interest between the mutual funds they manage and whether BlackRock should continue acting as an investment advisor to their mutual funds. The letter expresses concerns regarding: 
    • the financial relationships between the directors and BlackRock, which could allegedly undermine director independence and result in over-boarding;
    • whether there has been sufficient disclosure, oversight, and investigation into potential conflicts of interest by BlackRock as investment adviser to the mutual funds; and
    • the actions of the directors related to BlackRock’s public commitments to use client assets to advance ESG goals rather than maximize shareholder value.
  • The letter also alleges that BlackRock’s ESG commitments have pushed the political goals of alliances like Climate Action 100+ and the Net Zero Asset Managers, which raise concerns over BlackRock’s duty to act exclusively for the financial benefit of its shareholders.
    
     

Letter to Banks

• Status
  • Published (5/19/23)

• Summary 
  • Expresses concern over voting habits of proxy shareholders in relation to support for ESG proposals at outside companies, urging consistency among internal votes and votes in outside companies.
  • Discusses how banks encourage their own shareholders to vote on climate-related shareholder resolutions versus how they vote when functioning as asset managers.
    
     

Letter to members of the Net-Zero Insurance Alliance

• Status
  • Published (5/15/23)

• Summary 
  • Expresses concerns over the legality of insurance companies and clients focusing on climate concerns, claiming that doing so creates financial losses for residents of the undersigned states. The letter criticizes the targets set by the Net-Zero Insurance Alliance, which its recipients are members of.
  • Makes 8 follow-up requests of recipients for documents or information related to alleged "problems."
  • As of 5/30/23, several firms had walked out of NZIA.
    
     

Letter to Asset Managers Warning Them About Use of ESG Factors in Proxy Voting Decision-Making

• Status
  • Published (3/30/23)

• Summary 
  • Coalition of 21 state attorneys general led by the attorneys general from Montana, Louisiana and Utah sent a letter to a number of asset managers for making commitments that "cast doubt on their adherence to fiduciary requirements, representations to consumers about their services, and compliance with antitrust laws." 
  • Claims asset managers have committed to use client assets to change portfolio company behavior so that it aligns with the ESG goal of achieving net zero by 2050. This specific, political commitment changes the terms of the products offered, as well as engagements with individual companies. These changes may be especially apparent in the 2023 proxy season that presents several resolutions related to net zero and social issues.

Petition to Review and Set Aside SEC Final Rule Entitled “Enhanced Reporting of Proxy Votes by RICs; Reporting of Executive Compensation Votes by Institutional IMs”

• Status
  • Filed (2/22/23)

• Summary 
  • Republican State Attorneys General from Louisiana, Texas, Utah, and West Virginia filed a Petition for Review requesting the Fifth Circuit Court of Appeals to set aside the Final Rule which requires funds to give more details about their votes on ESG proposals, making it easier for investors to monitor a fund’s voting record on these issues
  • Although the petition did not elaborate on the arguments against the rule, Utah’s Attorney General explained in an interview that he opposes the rule because he believes activists will use the information to advance their ESG interests to the exclusion of advancing shareholder value.

Letter Urging U.S. Congress to Exercise authority under the CRA to Disapprove the DOL’s Final ESG Rule

• Status
  • Published (2/14/23)

• Summary 
  • The Utah Attorney General led a coalition of 27 states in sending a letter to U.S. Congress urging them to exercise their separate powers under the Congressional Review Act (CRA) to disapprove of the Department of Labor’s final rule on “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.”

Texas AG Sues Biden Administration to Stop It From Risking American Workers’ Retirements by Promoting “Woke” ESG Goals

• Status
  • Filed (1/26/23)
  • U.S. District Judge Matthew J. Kacsmaryk denied DOL's motion to move the case from the N.D. Texas because they  failed to show "good cause" that a transfer was needed (3/28/23)
  • DOL filed an Opposition to Plaintiff’s Motion for Preliminary Injunction (3/31/23)
  • The DOL filed a competing motion for summary judgment (6/2/23).
  • Judge Matthew J. Kacsmaryk granted the DOL's motion for summary judgment (9/22/23).
  • Republican AGs filed a notice of appeal in U.S. District Court in Amarillo, Texas (10/26/23).

• Summary 
  • The Texas and Utah Attorneys General are leading a coalition of 25 states in a lawsuit against the Biden Administration to stop the DOL’s 2022 ESG rule from taking effect, claiming that it is fundamentally unlawful in violation of ERISA, as well as arbitrary and capricious in violation of the Administrative Procedure Act.
  • According to the complaint, the DOL’s 2022 rule “eliminates the objective pecuniary / nonpecuniary standard in the 2020 rule and instead formally incorporates ill-defined, subjective ESG concepts into the ERISA regulations.” The 2022 Rule “also undermines a fiduciary’s prudence obligations.

Letter to ISS and Glass Lewis regarding ESG and Proxy Voting

• Status
  • Published (1/17/23)

• Summary 
  • Republican State Attorneys General from 21 states including: Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, South Carolina, Texas, Utah, Virginia, and West Virgina issued a letter to corporate proxy advisers, ISS and Glass Lewis, over recommendations related to ESG goals arguing that the firms “climate change advocacy and goals [suggest] potential violations of [their] contractual obligations and legal duties.” 

Letter to SEC Secretary on ESG

• Status
  • Published (6/17/22)

• Summary 
  • Republican State Attorneys General from 12 states issued a letter to the SEC opposing the SEC’s proposed rulemaking titled “The Enhancement and Standardization of Climate-Related Disclosures for Investors,” claiming that the SEC is acting outside the scope of its authority and expertise in capital markets and instead is attempting to be an environmental regulator.

Actions Targeting Entities that Boycott Fossil Fuel and/or Firearms/Ammunition Companies

Motion to Federal Energy Regulatory Commission to Intervene in BlackRock's Blanket Reauthorization to Invest in Utilities

• Status
  • Filed (5/10/23)

• Summary 
  • Republican State Attorneys General from 17 states filed a motion with the Federal Energy Regulatory Commission (FERC) to intervene in FERC's three-year reauthorization of BlackRock’s blanket authorizations to buy, acquire or take over $10 million in voting securities of public, electric, utility, transmitting or holding companies that was granted in 2022.
  • FERC granted the 2022 re-authorization based on assurances from BlackRock that it was a passive, non-controlling investor and that it never intended to change or influence the control of an issuer or exercise any control over the day-to-day management or operations of utility companies. In their motion, they write that FERC's orders have never authorized BlackRock to engage in “any activity designed to … influence the day-to-day commercial conduct of an FPA-covered utility’s business. 
    
     

Motion to Federal Energy Regulatory Commission to Bar Vanguard’s Utility Holdings

• Status
  • Filed (11/28/22)

• Summary 
  • Republican State Attorneys General from 13 states including: Alabama, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, South Carolina, South Dakota, Texas, and Utah filed a motion with the Federal Energy Regulatory Commission (FERC) to intervene and protest Vanguard’s request for a three-year extension of the blanket authorization it was granted in 2019 (2019 Authorization) under Section 203 of the Federal Power Act for acquisitions of voting securities of publicly traded utilities. 
  • FERC granted the 2019 Authorization based on assurances from Vanguard that it would refrain from investing “for the purpose of managing” utility companies. Vanguard also guaranteed that it would not seek to “exercise any control over the day-to-day management” of utility companies nor take any action “affecting the prices at which power is transmitted or sold.”

Letter to CEO of BlackRock on ESG

• Status
  • Published (8/4/22)

• Summary 
  • Republican State Attorneys General from 19 states including: Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia, issued a letter to the CEO of BlackRock asserting how BlackRock uses state pension fund assets to promote ESG goals and “BlackRock’s climate agenda,” and it flagged concerns about BlackRock’s investment and voting strategies.

 

Restrict Use of ESG Factors: Focus on Pecuniary Characteristics

Letter to Proxy Advisory Firms

• Status
  • Published (5/15/23)

• Summary 
  • Expresses concerns over proxy-voting advice related to ESG and "public money," and how advisory firms may consider factors other than shareholder value or not disclose data on actual vote recommendations. 
  • Requests that recipients answer extensive questionnaire regarding shareholder proposals and ESG.
    
     

Letter to Asset Managers

• Status
  • Published (5/15/23)

• Summary 
  • Expresses concern over ESG consideration's impact on taxpayers' long-term economic interests and implies that considering ESG prevents asset managers from focusing on investors' interests.
  • Requests that recipients answer extensive questionnaire regarding shareholder proposals and ESG.
    
     

Actions Targeting Entities that Boycott Fossil Fuel and/or Firearms/Ammunition Companies

Fossil Fuel Banking Letter

• Status
  • Published (11/22/21)

• Summary 
  • Asserts that financial officers from 15 states, including Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming will work to ensure that financial institutions that do not boycott the fossil fuel industry are selected for contracts with their states.