Oklahoma

Title

Key Dates

Nature of
Action

ESG Category

Summary

Oklahoma Teachers OKs Stock Divestment of 'Anti-Fossil Fuel' Firms

HB2034: Energy Discrimination Elimination Act of 2022

Effective date
11/1/2022

Adopted
5/9/2022

Introduced
2/1/2021

Legislation

Target Entities That Boycott Certain Industries

■Applies to all Oklahoma state retirement systems.

■Requires the Treasurer to maintain a list of financial companies that boycott energy companies. Prohibits investment in listed companies. Requires divestment within 360 days from listed companies that do not cease their boycott within 90 days of receiving notice of the state entity's intention to divest.

■Does not apply to indirect holdings in actively or passively managed investment funds or private equity funds.

SUBSEQUENT DEVELOPMENTS (AS MENTIONED ABOVE)

On May 3, 2023, Oklahoma State Treasurer announced initial list of financial institutions that have been found to boycott oil and gas companies, and may be excluded from doing business with the state.

On August 15, 2023, Oklahoma State Treasurer announced a revised list of financial institutions that have been determined to be engaging in energy company boycotts. Also, in August, the board of the $11.1 billion Oklahoma Public Employees Retirement System (OPERS) voted to take a fiduciary exemption permitted under the law that would allow it to ignore the divestment mandate if it was inconsistent with its fiduciary duty. The board voted in favor of the exemption 9-1, with Oklahoma Treasurer Russ (who serves on the board) casting the only "no" vote.

On October 11, 2023, Oklahoma state lawmakers questioned the Oklahoma State Treasurer over the list of financial companies that the Treasurer's office prohibited from doing business with state governmental entities for allegedly boycotting oil and gas companies. During the three-hour hearing led by state Sen. David Rader, the Treasurer challenged the ability of OPERS board to rely on the statute’s fiduciary exemption, which other Oklahoma lawmakers have continued to advocate for, and he called for legislators to narrow the exception or retract it entirely.

On November 21, 2023, a former state employee sought a temporary restraining order against Treasurer Russ and the state over Oklahoma's blacklisted financial institutions, which are prohibited from doing business with the state. Among other claims, the lawsuit alleges the Treasurer's actions violate the First Amendment of the U.S. Constitution and the Oklahoma law defies the state constitution.

On May 7, 2024, Oklahoma County District Court Judge Sheila Stinson issued a temporary injunction blocking enforcement of the law after finding retiree Don Keenan is likely to succeed in his lawsuit filed last year alleging the law violates the state constitution and is too vaguely written. In her ruling, Stinson said the state constitution requires retirement funds be managed for the exclusive benefit of their beneficiaries, but the law appears aimed at countering certain political agendas and to help the oil and gas sector. Stinson also said the law contains conflicting and unclear definitions for key terms. Treasurer Russ said he is preparing to appeal the order.

Title

Key Dates

Nature of
Action

ESG Category

Summary

Treasurer’s Statement Regarding Certain Financial Institutions Leaving Climate Action 100+

Introduced

■ Commends J.P. Morgan Chase, State Street and BlackRock for leaving Climate Action 100+.  The statement says that to regain the trust necessary to manage the state’s money, firms like BlackRock should focus only on financial return, and depart from any other climate groups that require using client money to pursue ESG goals.

■ The statement also says how the Treasurer has spoken with each bank or asset manager on the state's Restricted Financial Company List, and noted the need to withdraw from groups where membership requires actions that violate Oklahoma law including: Climate Action 100+, the Glasgow Financial Alliance for Net Zero (“GFANZ”), the Net Zero Managers (NZAM) Initiative, and the Net-Zero Banking Alliance. "Forcing companies to align with net zero would devastate not just Oklahoma’s economy and tax base but, becomes a national security issue for the entire country and a world health issue for the entire universe. Financial institutions managing state money have no business asking companies to boycott industries providing Oklahoma and America our jobs, supporting our economy, creating national security and funding state finances, all things to which I am entrusted with protecting.”

 ■ Requires all shares held directly or indirectly by or on behalf of a state governmental entity, the participants, and their beneficiaries shall be voted solely in the pecuniary interest of plan participants and their beneficiaries. A state governmental entity shall not rely on any voting decision guidance from any company listed by the State Treasurer. Unless no economically practicable alternative is available:

■ A state governmental entity shall not grant proxy voting authority to any person who is not a part of the entity unless that person has a practice of, and in writing commits to, following guidelines that match the state governmental entity’s obligation to act solely upon pecuniary factors; State governmental entity assets shall not be entrusted to a fiduciary, unless that fiduciary has a practice of, and in writing commits to, following guidelines when engaging with portfolio companies and voting shares or proxies that match the state governmental entity’s obligation to act solely upon pecuniary factors; and An investment manager, fiduciary, or state governmental entity shall not adopt a practice of following the recommendations of a proxy adviser or other service provider, unless such adviser or service provider has a practice of, and in writing commits to, following proxy voting guidelines that match the governmental entity’s obligation to act solely upon pecuniary factors.

 ■ SB 1075 prohibits any state agency or political subdivision from entering into an agreement or contract with a business without written verification that the business does not engage in economic boycotts and will not engage in economic boycotts during the term of the agreement or contract. Businesses that fail to abide by such a verification shall be liable to the state for damages in an amount 3 times the amount of the agreement or contract.

■ "Economic boycott" means without an ordinary business purpose, refusing to deal with, terminating business activities with, or otherwise taking any commercial action that is intended to penalize, inflict economic harm on, limit commercial relations with, or change or limit the activities of a company because the company, without violating controlling federal or state law: (a) engages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel-based energy, timber, mining, or agriculture, (b) engages in, facilitates, or supports the manufacture, import, distribution, marketing or advertising, sale, or lawful use of firearms, ammunition or components parts and accessories of firearms or ammunition, or (c) does not meet, is not expected to meet, or does not commit to meet environmental standards or disclosure criteria, in particular to eliminate, reduce, offset, or disclose greenhouse gas emissions.

Title

Key Dates

Nature of
Action

ESG Category

Summary

■ Prohibits all state and local managed funds from holding investments in any foreign adversary, state-owned enterprise of a foreign adversary, company domiciled within a foreign adversary, company domiciled within a foreign adversary, or other entity within a foreign adversary.            

■ Prohibits all state and local managed funds from investing or depositing public funds in any bank that is domiciled or has its principal place of business in a foreign adversary.

■ Requires all state-managed funds to immediately in good faith begin divestment of any holdings prohibited in this act, with total divestment achieved by the earlier of January 1, 2027 or two (2) years after enactment of this at. 

■ Requires the State Treasurer to identify all companies that are state-owned enterprises of, are domiciled within, whose primary affairs are conducted within, or whose majority ownership is held within a foreign adversary, and include those companies in a list of restricted companies to be distributed to each state or locally-managed fund no later than 6 months after the effective date of this act.

Introduced, but did not pass in 2024 legislative session

Introduced, but did not pass in 2024 legislative session

■ Amends certain sections of the Energy Discrimination Elimination Act of 2022 by among other things, broadening the categories of targeted companies that are the subject of financial institution boycotts to include: timber, mining and agriculture entities.  It also expands the scope of financial institutions to include any company (public or private) that is engaged in financial services, or banking or that is an investment company.

■ Requires state entities claiming exemptions to have to show that divestment would lead to what it defines as a "materially negative financial impact” and it would require the Treasurer's agreement that an exemption is warranted.

■ Eliminates an exemption allowing public pension funds from having to divest from indirect holdings in actively managed or passively managed investment funds or private equity funds. They would also no longer be able to delay or cease terminating contracts with blacklisted firms if they expect a loss in value or a benchmark deviation in performance.

SUBSEQUENT DEVELOPMENTS

Oklahoma judge temporarily blocks state anti-ESG boycott law

HB3114: Oklahoma Welfare for Corporations Act

Introduced, but did not pass in 2024 legislative session

■ Requires a comprehensive cost analysis and risk analysis to be conducted by the Incentive Evaluation Commission to assess the potential impact on public finances and associated risks including the corporations participation in DEI and ESG, prior to considering a corporate welfare bill.

■ The cost analysis shall involve a thorough examination of the projected financial implications of the proposed tax incentive. This assessment shall consider factors such as tax revenue loss, potential budgetary constraints, and the long-term fiscal impact on the government.

■ The risk analysis shall evaluate the potential risks and uncertainties associated with granting the tax incentive. This assessment shall include an examination of the economic viability of the corporation, potential job creation or retention, market conditions, and any potential negative consequences for other industries or taxpayers.

■ The report generated from the cost and risk analyses shall be submitted publicly to the appropriate legislative committee. This committee shall review the report and consider its recommendations when making decisions regarding the awarding of tax incentives.

Introduced, but did not pass in 2024 legislative session

■ Before a review committee makes any recommendation to a governing body related to formation of an incentive district or an increment district, requires the review committee to be provided with the following information related to each and every for-profit business enterprise that would benefit, directly or indirectly, from the formation of an incentive district or an increment district: (i) whether the legal entity pursues or has adopted environmental, social, or governance policies that are inconsistent with profit maximization; (ii) whether the legal entity pursues or has adopted diversity, equity, or inclusion policies.

■ Would be effective November 1, 2024

SB1536: Amendments to the Energy Discrimination Elimination Act of 2022

Introduced, but did not pass in 2024 legislative session

■ Amends the Energy Discrimination Elimination Act of 2022 by adding that in the event the State Treasurer disagrees with a governmental entity seeking to rely on an exemption from having to divest from a listed financial institution, the Treasurer shall be required to secure the opinion of the State Attorney General as to whether the determination is in compliance with state laws binding the governmental entity

SUBSEQUENT DEVELOPMENTS

Includes definitions. Provides that a financial company that fails to provide to the Treasurer a written verification before 61 days after receiving the request from the Treasurer is presumed to be boycotting energy companies. Provides that state governmental entities required to sell, redeem, divest, or withdraw all publicly traded securities of a listed financial companies shall comply with the following schedule: (a) at least 50% of those assets shall be removed not later than the 180th day after the date that the company receives notice, unless the state governmental entity determines, based on a good-faith exercise of its fiduciary discretion and subject to subparagraph (b), that a later date is more prudent; (b) 100% of those assets shall be removed from the state governmental entity's assets under management not later than the 360th day after the date the financial company receives notice.

Provides other requirements related to actions that state governmental entities must take with respect to energy companies.

■ Prohibits a governmental entity from entering into a contract with a company for the purchase of goods or services, unless the contract contains a written verification from the company that it does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and that it will not do so during the term of the contract.

SB1004: Creating the Oklahoma Pension Fiduciary Duty Act

Introduced, but did not pass in 2024 legislative session

Legislation

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

■Requires an investment fiduciary to discharge his or her duties in the interests of the participants in a public employee retirement system and their beneficiaries for the exclusive purpose of providing financial benefits and paying reasonable expenses for administering the public employee retirement system. Additionally, requires an investment fiduciary to take into account only financial factors when discharging fiduciary duties.

■Requires all shares held by or on behalf of a public employee retirement system, the participants, and their beneficiaries be voted solely in the financial interest of participants in the system and their beneficiaries.

SUBSEQUENT DEVELOPMENTS

Tracks the Heritage Foundation's "State Pension Fiduciary Duty Act"

HB2547: Requiring consideration of solely pecuniary factors; restricting proxy voting

Introduced, but did not pass in 2024 legislative session

Legislation

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

Summary of the April 5, 2024 Committee substitute bill:

■ All shares of stock or ownership interest held directly or indirectly by or on behalf of a governmental entity shall be voted solely in the pecuniary interest of plan participants and their beneficiaries.

■ Unless no economically practicable alternative is available, (i) an investment manager, fiduciary, or governmental entity shall not adopt a practice of following the recommendations of a proxy adviser or other service provider, unless the adviser or service provider has a practice of, and in writing commits to, following proxy voting guidelines that match the obligation of the governmental entity to act solely upon pecuniary factors; (ii) a governmental entity shall not grant proxy voting authority to any person who is not a part of the governmental entity, unless that person has a practice of, and in writing commits to act solely upon pecuniary factors; (iii)  an investment manager, fiduciary, or governmental entity shall not adopt a practice of following the recommendations of a proxy adviser or other service provider, unless such adviser or service provider has a practice of, and in writing commits to, follow proxy voting guidelines to act solely upon pecuniary factors.

■ All proxy votes shall be tabulated and reported annually to the State Treasurer, which shall contain a vote caption, the vote of the plan, the recommendation of company management, and, if applicable, the recommendation of the proxy advisor.  These reports shall be posted on a publicly available webpage on the website of the State Treasurer. 

■ If enacted, this legislation shall become effective July 1, 2024. 

SUBSEQUENT DEVELOPMENTS

On April 5, 2024, a Committee substitute was introduced, which  prohibits actions with respect to advice provided by proxy advisers without certain commitments to vote solely in the pecuniary interest of plan participants; prohibiting grant of proxy voting rights; providing exceptions; requiring tabulation of certain proxy votes; requiring report to the State Treasurer.

SB455: Reviewing the constitutionality of federal actions relating to ESG in the financial sector

Introduced, but did not pass in 2024 legislative session

Legislation

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

■Permits the Legislature to review any executive order issued by the President of the United States, federal agency rule or federal congressional action to determine the constitutionality of such action, including the regulation of the financial sector as it relates to environmental, social or governance standards.

HB2340: An Act relating to government contracts; prohibiting certain government entities from entering into certain contracts

HB1617/2545/2777: Oklahoma Public Finance Protection Act

Introduced, but did not pass in 2024 legislative session

Legislation

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

■Prohibits consideration of nonpecuniary factors by fiduciaries when evaluating an investment, or evaluating or exercising any right appurtenant to an investment. Defines “nonpecuniary” as any action taken or factor considered by a fiduciary with any purpose to further environmental, social or political goals. ESG or other similarly oriented considerations are pecuniary factors only if they present economic risks or opportunities that qualified investment professionals would treat as material economic considerations under generally accepted investment theories.

■Requires that all shares held directly or indirectly by or on behalf of a pension benefit plan or the beneficiaries thereof to be voted solely in the pecuniary interest of plan participants.

SUBSEQUENT DEVELOPMENTS

Amendment requires fiduciaries considering ESG factors as pecuniary factors to examine also the level of diversification, degree of liquidity, and potential risk-return in comparison with alternative investments that would play a similar role in a plan portfolio.

SB15/HB3144: Firearms; prohibiting certain contracts; requiring written verification

Introduced, but did not pass in 2024 legislative session

Legislation

Target Entities That Boycott Certain Industries

■Prohibits Oklahoma state governmental entities from entering into a contract with a company for goods or services worth at least $100,000 and paid at least partly from public funds unless the company verifies in writing that it does not have a practice, policy or directive that discriminates against firearm entities or firearm trade associations and will not do so during the contract term. Only applies to companies with at least 10 full-time employees.

■ HB 1947 prohibits a governmental entity from entering into a contract with a company for goods and services unless the contract contains a written verification that the company does not and will not engage in economic boycotts during the term of the contract. This prohibition only applies to contracts that are between a governmental entity and a company with ten or more employees and if that company will be paid $100,000 or more from public funds during the term of the contract. If a company violates the written verification, it is obligated to pay damages to the state in an amount equal to three times what was paid to the company under the contract. The Attorney General is authorized to enforce this measure and to gather any information, data, or records for examination in the case of a violation.

■ Economic boycott, as defined in the measure, means refusing to deal with, terminating business activities with, or taking commercial action intended to penalize, economically harm, limit relations, or limit activities of a company because they are engaged in fossil fuel-based energy, timber, mining, agriculture, firearms or ammunition industries or have business practices that do not: (1) meet environmental standards to eliminate, reduce, offset, or disclose greenhouse gas emissions; (2) meet corporate board or employment composition, compensation, or disclosure criteria that incorporates characteristics protected in this state; or (3) facilitate access to abortion, sex or gender change, or transgender surgery.

SB974: Prohibiting usage of ESG factors in evaluating employees

Introduced in 2023, carried over to 2024

Legislation

Restrict Use of ESG Factors; Focus on Pecuniary Characteristics

■Prohibits governmental entities from using, promoting, enforcing, providing data for use in, or otherwise participating in the creation or use of ESG or “economically targeted investment” (ETI) requirements related to hiring, firing, and evaluation of employees.

■Prohibits the use of ESG, ETI, or related criteria in awarding state contracts. Any entity vying for a contract with the state must state its employees will not be subject to “personal ESG, ETI, or related scoring” as a basis for hiring, firing, or evaluation.

 ■ Requires all shares held directly or indirectly by or on behalf of a state governmental entity, the participants, and their beneficiaries shall be voted solely in the pecuniary interest of plan participants and their beneficiaries. A state governmental entity shall not rely on any voting decision guidance from any company listed by the State Treasurer. Unless no economically practicable alternative is available:

■ A state governmental entity shall not grant proxy voting authority to any person who is not a part of the entity unless that person has a practice of, and in writing commits to, following guidelines that match the state governmental entity’s obligation to act solely upon pecuniary factors; State governmental entity assets shall not be entrusted to a fiduciary, unless that fiduciary has a practice of, and in writing commits to, following guidelines when engaging with portfolio companies and voting shares or proxies that match the state governmental entity’s obligation to act solely upon pecuniary factors; and An investment manager, fiduciary, or state governmental entity shall not adopt a practice of following the recommendations of a proxy adviser or other service provider, unless such adviser or service provider has a practice of, and in writing commits to, following proxy voting guidelines that match the governmental entity’s obligation to act solely upon pecuniary factors.

HB2218: Prohibiting discrimination against firearm entities

Introduced, but did not pass in the 2023 legislative session

Legislation

Target Entities That Boycott Certain Industries

■ Prohibits a governmental entity from entering into a contract with a company for the purchase of goods or services, unless the contract contains a written verification from the company that it does not have a practice, policy, guidance, or directive
that discriminates against a firearm entity or firearm trade association; and that it will not do so during the term of the contract.

■ Applies to contracts between governmental entities and a company with at least ten (10) full-time employees and the contract has to be worth at least $100,000.