Senior legal analysts explore the latest SEC initiatives around ESG disclosure for asset managers, as well the strident opposition and likely legal challenges the agency’s controversial proposals will encounter

As environmental, social, and governance (ESG) investment continues to expand, the SEC is trying to bring greater clarity around fund and adviser disclosures for the benefit of investors. Despite an estimated $17.1 trillion in “sustainable” investments at stake, there are few standards for marketing investments that consider environmental, social, and governance factors. Moreover, concerns around greenwashing and exaggerated ESG claims remain a top priority for the SEC as it has stepped up enforcement efforts on this score. Against this background, the SEC has issued two new rulemaking proposals and a request for comment. The comment period for these releases concluded in August.

See related articles: Uniting Chief Legal Officers to Transform Governance – Leaders Summit 2022 Session, Wolters Kluwer ESG Expert Provides Analysis on SEC’s Historic Proposed Disclosure Rules on Climate Change

In a new Strategic Perspective entitled “SEC targets ESG asset managers and fuels critics“, Wolters Kluwer legal experts consider the increasingly vocal opponents to ESG investing, as well as examine reactions to the SEC rule proposals, including the likelihood of adoption and legal challenges.

Additionally, the Strategic Perspective includes the views and insights from two of today’s leading legal practitioners in the asset management space, Gwen Williamson, partner in the Investment Management group at Perkins Coie, and Howard Sidman, partner in the Financial Markets practice at Jones Day.

Like a nutrition label, the SEC’s proposed ESG disclosures for advisers and funds aim to give investors greater confidence that ESG claims mean something real. There are disagreements as to specifics, but overall there appears to be broad support for the goal of improving ESG information for investors.
–    Lene Powell, J.D., Senior Legal Analyst 

The wide range of public comments received in connection with the SEC’s “Names Rule” demonstrates that the war over ESG investing and its regulation is alive and well. While supporters of the SEC’s initiative see the proposals as a means to prevent greenwashing and enhancing investor understanding, opponents view the very same proposed rules as furthering confusion, complexity, and devoid of any corresponding benefits to the public.  
–    Brad Rosen, J.D., Senior Legal Analyst

Financial data providers like S&P, Morningstar, and Bloomberg have moved aggressively to meet investor demand for bespoke ESG indexes and other investment products. Their success has earned them attacks from state attorneys general, right-leaning media, Elon Musk, even some academic circles, and now they find the SEC’s nose under their tent.
–    Matthew Garza, J.D., Managing Editor

Read “SEC targets ESG asset managers and fuels critics” here.

Source: Wolters Kluwer Legal & Regulatory U.S.