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On Wednesday, the US Securities and Exchange Commission (SEC) proposed a regulation to establish standardized requirements for funds marketed as featuring environmental, social, and governance (ESG) characteristics.

Arriving in the wake of an Elon Musk tweet criticizing Tesla’s delisting from the S&P ESG 500 that stoked widespread debate on the merits of ESG investing and its criteria, the regulation is “designed to create a consistent, comparable, and decision-useful regulatory framework for ESG advisory services and investment companies.”

The rule, which should not be confused with the SEC’s recently-proposed climate-related disclosures rule, will now be subject to months of public notice and comment before a finalized version is implemented.

Like the European Union’s Sustainable Finance Disclosure Regulation (SFDR) that took effect last March, the SEC’s Enhanced Disclosures by Certain Investment Advisers and Investment Companies about Environmental, Social, and Governance Investment Practices will classify ESG-type funds into three categories:

• Integration Funds that consider “one or more ESG factors alongside other non-ESG factors, but generally give[] ESG factors no greater prominence than non-ESG factors in its investment selection process”;

• ESG-Focused Funds that “focus on one or more ESG factors as a significant consideration in its investment selection process or as part of its engagement with portfolio companies”; and

• Impact Funds “with a goal of achieving a specific ESG impact.” 

For each category, subject funds will have to comply with specific disclosure requirements, including explaining how the fund “incorporates ESG factors into the investment decision process by, for example, explaining how it applies an inclusionary or exclusionary screen, or how an index the fund uses factors in ESG in determining its constituents.”

ESG-Focused Funds (and Impact Funds, which are technically a subset of ESG-Focused Funds) that consider environmental factors will have to provide GHG emissions data, “unless the fund does not…consider emissions data in its investment strategy and it specifically discloses that fact to investors.”

The proposed rule will also require that fund names suggesting an ESG or certain industry focus must invest at least 80% of holdings in assets fitting that description.

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Please contact our firm at 647-725-4308 or info@greeneconomylaw.com for legal assistance in connection with ESG and sustainable finance activities in Canada.