On May 25, 2022, the Securities and Exchange Commission (SEC) proposed significant rule and form amendments under the Investment Company Act of 1940, as amended (1940 Act) and the Investment Advisers Act of 1940, as amended (Advisers Act). The rules and amendments would require registered investment advisers, certain advisers that are exempt from registration (exempt reporting advisers), and registered investment companies and business development companies (BDCs) (together, funds), to provide additional information regarding their environmental, social, and governance (ESG) investment practices. The SEC is also proposing to amend Form N-CEN under the 1940 Act to require all index funds – even if the relevant index is not an ESG-related index – to provide identifying information about the index. The charts below summarize the proposed amendments and identify the scope of advisers and funds that would be affected.

Affected Advisers

Affected Funds

Discussion

1. Proposed Fund Disclosures to Investors
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   1. Proposed Prospectus ESG Disclosures

The SEC is proposing to require any fund engaging in ESG investing to provide additional information about how the fund implements ESG factors in the fund’s principal investment strategies. The requirements for a particular fund will depend upon how the fund is classified. The SEC would distinguish among: (i) Integration Funds – funds that consider one or more ESG factors along with other, non-ESG factors in their investment decisions, but those ESG factors are generally no more significant than other factors in the investment selection process, such that ESG factors may not trump any other factor in deciding to include or exclude any particular investment in a portfolio; (ii) ESG-Focused Funds – funds that apply inclusionary or exclusionary screens, funds that focus on ESG-related engagement with the issuers in which they invest and funds that seek to achieve a particular impact;¹ and (iii) Impact Funds – a subset of ESG-Focused Funds that seeks to achieve a specific ESG impact or impacts.

1. Integration Funds

An Integration Fund would be required to summarize in a few sentences how it incorporates ESG factors into its investment selection process, including the particular ESG factors that it considers. An open-end fund² would include this disclosure in the summary section of its prospectus, while a closed-end fund³ would include this disclosure in the prospectus’ general description of the fund.

An Integration Fund would also be required to include a more detailed description of how it incorporates ESG factors into its investment selection process. The description would provide more detail regarding the extent to which the fund considers the relevant ESG factors versus other factors when selecting investments. An open-end Integration Fund would be required to include this description in its statutory prospectus, while a closed-end Integration Fund would be required to include this description only after the summary description.

If an Integration Fund considers greenhouse gas (GHG) emissions as one of its ESG factors, the fund would be required to provide more detailed information in its statutory prospectus (in the case of an open-end Integration Fund) or later in the prospectus (in the case of a closed-end Integration Fund) about how it considers the GHG emissions of its portfolio holdings. The disclosure must address the methodology that the fund uses as part of its consideration of portfolio holding GHG emissions.

2. ESG-Focused Funds

An ESG-Focused Fund would be required to provide information about its consideration of ESG factors in a tabular format – a so-called ESG Strategy Overview table. An open-end ESG-Focused Fund would be required to include the ESG Strategy Overview Table at the beginning of its “risk/return summary,” while a closed-end ESG-Focused Fund would be required to include the ESG Strategy Overview Table at the beginning of the fund’s discussion of its organization and operation. The table would include both check-the-box and narrative disclosures, and would appear in the following format:

[ESG] Strategy Overview

1. Overview of the fund’s ESG strategy

The SEC would require that an ESG-Focused Fund provide a concise description of the factor or factors that are the focus of the fund’s strategy. Further, the fund would be required to check the relevant box or boxes that correlate to its strategy. For example, an index fund that applies an exclusionary screen would be required to check the index fund and exclusionary screen boxes. A fund would check the box for proxy voting or engagement only if either strategy is a “significant” means of implementing the fund’s ESG strategy. A fund would check the box for any other strategy if it utilized that strategy at all, regardless of whether its use was significant.

An ESG-Focused Fund would be required to supplement the disclosure included in the table with further disclosure – for an open-end fund, in its statutory prospectus, and for a closed-end fund, later in the body of the prospectus. Any electronic copy of the prospectus would require the fund to hyperlink to the supplemental disclosure.

2. How the Fund incorporates ESG factors in its investment decisions

The SEC would require that an ESG-Focused Fund summarize how it incorporates ESG factors into its process for evaluating, selecting, or excluding investments. The disclosure would elaborate on any of the boxes checked. For example, a fund applying an exclusionary screen could not explain its screen in the same manner as a fund applying an inclusionary screen.⁴ Funds employing inclusionary or exclusionary screens would be required to briefly explain the factors that the screen applies, and, if applicable, any exceptions that apply to the screen. If the screen applies to less than 100% of the portfolio (not including cash or cash equivalents), the fund would need to state the percentage of the portfolio, in terms of net asset value, to which the screen applies, and explain why the screen applies to less than 100% of the portfolio.

If the fund uses an internal methodology, a third-party data provider, or a combination of both, in evaluating, selecting, or excluding investments, the fund’s disclosure in this row must describe how the fund uses the methodology, third-party data provider, or combination of both, as applicable.

If the fund tracks an index, the summary would be required to identify the index and briefly describe the index and how it utilizes ESG factors in determining its constituents. If the fund follows any third-party ESG framework as part of its investment process (such as the United Nations Sustainable Development Goals or the United Nations Principles for Responsible Investing), the fund would be required to provide an overview of the framework.

3. Proxy voting or engagement with companies

If an ESG-Focused Fund utilizes engagement with issuers, either by voting proxies or otherwise, as a significant method to implement its ESG strategy (by checking the proxy voting box, the engagement box, or both), it would be required to provide a brief narrative overview in the last row of the ESG Strategy Overview table of how the fund engages with portfolio companies on ESG issues. A fund that checks neither box would be required to disclose that neither proxy voting nor engagement with issuers is a significant part of its investment strategy.

The overview would be required to identify the specific methods, both formal and informal, that an ESG-Focused Fund utilizes to influence issuers. First, a fund would be required to identify whether it has specific or supplemental proxy voting policies and procedures that include one or more ESG considerations for companies in its investment portfolio and, if so, state which ESG considerations those policies and procedures address. Additionally, if an ESG-Focused Fund seeks to engage with issuers on ESG matters other than through voting proxies, such as through meetings with or advocacy to management, the fund would be required to disclose in this row an overview of the objectives it seeks to achieve with its engagement strategy. If the fund does not engage or expect to engage with issuers on ESG issues, the Fund must provide that disclosure in the row.

3. Impact Funds

Impact Funds would be subject to all of the same disclosure requirements as other ESG-Focused Funds. In addition, an Impact Fund would be required to provide in the row “How [the Fund] incorporates [ESG] factors in its investment decisions” an overview of the impact(s) the fund seeks to achieve, and how the fund seeks to achieve the impact(s). The overview must include (i) how the fund measures progress toward the specific impact, including the key performance indicators the fund analyzes, (ii) the time horizon the fund uses to analyze progress, and (iii) the relationship between the impact the fund is seeking to achieve and financial return(s). An Impact Fund would provide a more detailed description later in the prospectus to complement the overview provided in the ESG Strategy Overview Table.

An Impact Fund would also be required to disclose in its investment objective the ESG impact that it seeks to achieve with its investments. The proposed requirement is intended to highlight for investors any ESG-related impact an Impact Fund is seeking to achieve, because the SEC believes that specific or measurable impacts differentiate Impact Funds from other ESG-Focused Funds.

2. Unit Investment Trusts

The SEC proposes to require any unit investment trust (UIT) with portfolio securities selected based on one or more ESG factors to explain how those factors were used to select the portfolio securities. The SEC is not requiring more detailed disclosure because a UIT’s portfolio is fixed, and the model will not be used for continued investment selection after the UIT shares are sold. The SEC is not proposing to require UITs to disclose their engagement with portfolio companies because, according to the SEC, a UIT’s trustee generally votes the UIT’s shares in a portfolio company in the same proportion as the vote of all other holders of the portfolio company’s shares.

3. Fund Annual Report ESG Disclosure

The SEC proposes to require an Impact Fund to discuss in its annual report its progress on achieving its impact in both qualitative and quantitative terms during the reporting period.⁵ The Impact Fund would also be required to discuss the key factors that materially affected the fund’s ability to achieve its impact.

The SEC is also proposing to require an ESG-Focused fund for which proxy voting is a significant means of implementing its ESG strategy to disclose, in the MDFP or MD&A section of the annual report as applicable, the percentage of ESG-related voting matters during the reporting period for which the Fund voted in furtherance of the initiative. The fund would be permitted to limit the disclosure to voting matters involving ESG factors that the fund incorporates into its investment decisions.

Any ESG-Focused Fund that utilizes engagement with issuers through means other than proxy voting as a significant means of implementing its ESG strategy, would be required to disclose in its annual report progress on any key performance indicators of such engagement. The fund would also be required to disclose the number or percentage of issuers with whom it held ESG engagement meetings during the reporting period related to one or more ESG issues and the total number of ESG engagement meetings.⁶ However, it would not be required to express these figures as a percentage of the net assets of the portfolio.

Additionally, a fund for which proxy voting is a significant means of implementing its ESG strategy would be required to disclose certain information regarding how the fund voted proxies relating to portfolio securities on ESG issues during the reporting period. A fund for which engagement with issuers on ESG issues through means other than proxy voting is a significant means of implementing its ESG strategy would also be required to disclose certain information about its engagement practices. Finally, the proposal would require an ESG-Focused Fund that considers environmental factors to disclose the aggregated GHG emissions of the portfolio.

Finally, an ESG-Focused Fund that considers environmental factors as part of its investment strategy would be required to disclose the carbon footprint and the weighted average carbon intensity (WACI) of the fund’s portfolio in the MDFP or MD&A section of the fund’s annual report as applicable. The proposed requirement would apply to any ESG-Focused Fund that indicates that it considers environmental factors on Form N-CEN (environmentally-focused fund) unless it affirmatively states that it does not consider issuers’ GHG emissions as part of its investment strategy in the “ESG Strategy Overview” table in the fund’s prospectus.

A fund’s carbon footprint is defined as the total carbon emissions associated with the fund’s portfolio, normalized by the fund’s net asset value and expressed in tons of CO₂e⁷ per million dollars invested in the fund. The SEC states that carbon footprint is intended to enable investors to understand the extent to which their investments are exposed to carbon-related assets and their associated risks, as well as the climate impact of a fund’s investment decisions.

A fund’s WACI is its exposure to carbon-intensive companies, expressed in tons of CO₂e per million dollars of the portfolio company’s total revenue. A fund’s WACI measures a fund’s exposure to carbon-intensive companies – that is, the portfolio companies’ GHG emissions relative to their revenues.

The SEC proposes that for both the carbon footprint and WACI measures, a fund would determine the GHG emissions associated with each “portfolio company” (or “portfolio holding”), which would be defined as: (a) an issuer that is engaged in or operates a business or activity that generates GHG emissions; or (b) an investment company, or an entity that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Investment Company Act (a “private fund”), that invests in issuers described in clause (a), except for investments in money market funds. Fund investments that are not “portfolio companies”—for example, cash, foreign currencies (or derivatives thereof), and interest rate swaps—would be excluded from the GHG metrics calculations because these investments do not generate GHG emissions.

When calculating carbon footprint and WACI, a fund must use enterprise value, revenue, and GHG data filed with the SEC by an issuer if that data is available. If the issuer has not filed any of this data with the SEC, a fund may substitute enterprise value and revenue data provided by the issuer, and GHG data publicly disclosed by the issuer. If a fund is unable to find GHG data publicly, it should use a good faith estimate of an issuer’s GHG emissions. A fund that uses estimates in these calculations would be required to disclose the percentage of the aggregate portfolio GHG emissions that were calculated using the fund’s good faith estimation process. A fund would also be required to provide additional information in its Form N-CSR regarding any assumptions and methodologies the fund applied in calculating the portfolio’s GHG emissions, and any limitations associated with the fund’s methodologies and assumptions, as well as explanations of any good faith estimates of GHG emissions the fund was required to make.

The SEC also proposes to require an environmentally focused fund to disclose the Scope 3 emissions of its portfolio companies, to the extent that Scope 3 emissions data is reported by the fund’s portfolio companies. A fund would be required to separately disclose Scope 3 emissions for each industry sector in which the fund invests. Scope 3 emissions data would be calculated using the carbon footprint methodology, but not WACI. Moreover, a fund would not be required to estimate Scope 3 emissions data of an issuer that does not report its Scope 3 emissions.

4. Inline XBRL Data Tagging

The SEC would require funds to tag their ESG disclosures using Inline XBRL. The requirement is intended to make the disclosures more readily available and easily accessible for aggregation, comparison, filtering, and other analysis.

2. Adviser Brochure

AnchorThe SEC has proposed amendments to Form ADV, Part 2A (Brochure) in recognition of the rising significance that investors place on ESG factors when making investment decisions, and the growing number of advisers that offer ESG-related strategies. As stated by the SEC in the Adopting Release, the proposed amendments are intended to help clients and prospective clients better understand how advisers consider ESG factors when formulating investment advice and providing investment recommendations.

1. Item 8: Methods of Analysis, Investment Strategies, and Risk of Loss

The SEC has proposed to add a new Item 8.D to the Brochure, which would require an adviser to describe the relevant ESG factors for each significant investment strategy or method of analysis for which the adviser considers any ESG factors. This would include an explanation of how the adviser incorporates a particular ESG factor and/or a combination of factors into its investment recommendations. In the Proposing Release, the SEC breaks down this disclosure requirement in terms of three different types of ESG strategies: integration, ESG-focused, and ESG-impact.

• ESG Integration Strategy: ESG integration strategies generally do not afford more significance to ESG factors, as opposed to non-ESG factors. An adviser offering such a strategy would need to disclose under proposed new Item 8.D of its Brochure that, while considered, ESG factors are generally no more significant than other factors when the adviser provides investment advice.
   
• ESG-Focused Strategy: An ESG-focused strategy is one in which, “one or more ESG factors [are] . . . a significant or main consideration in advising . . . clients with respect to investments or in [the adviser’s] engagement strategy with the companies in which [the adviser’s] clients invest.” An adviser offering an ESG-focused strategy must describe each ESG factor that is a “significant” or “main” consideration in the adviser’s provision of investment advice. The adviser must also describe how it incorporates each of these factors into its investment advice.
   
• ESG-Impact Strategy: An ESG-impact strategy is one in which “ESG-focused strategies or method of analysis . . . seek to achieve a specific ESG impact or impacts.” An adviser offering an ESG-impact strategy would need to provide an overview of the impact(s) the adviser is seeking to achieve, and how the adviser is seeking to achieve the impact(s). The Proposing Release specifically notes the following information that would need to be disclosed: (1) how the adviser measures progress toward the stated impact(s); (2) key performance indicators that the adviser analyzes; (3) the time horizon the adviser uses to analyze progress; and (4) the relationship between the impact(s) the adviser is seeking to achieve and financial returns.

Finally, the proposed amendment to Item 8.D would require an adviser to disclose any criteria or methodology that it uses to evaluate, select, or exclude investments based on ESG factors. The Proposing Release lists three specific criteria and methodology that the adviser would be required to address, if applicable: (1) the adviser’s use of internal methodology or a third party scoring provider or framework, including an explanation as to how the adviser evaluates the quality of third-party data; (2) the adviser’s use of an inclusionary or exclusionary screening, including an explanation of the factors the screen applies; (3) the adviser’s use of an index, including the name and description of the index.

2. Item 10: Other Financial Industry Activities and Affiliations

The SEC has proposed to add a new Item 10.C to the Brochure, which would require an adviser to disclose and describe any material relationship or arrangement that the adviser or any of its management persons have with any related person that is an ESG consultant or other ESG services provider. In the Proposing Release, the SEC notes the conflict of interest that could arise if an adviser employs a related person’s ESG advisory service rather than purchasing ESG ratings or indices from an unrelated ESG provider. To address that potential conflict, advisers would be required to disclose any related persons who are, for example, ESG index providers or ESG scoring providers.

3. Item 17: Voting Client Securities

The SEC has proposed to amend Item 17.A of the Brochure, which would require an adviser to include in its Brochure a description of the ESG factors it considers when voting client securities and how it considers them. Further, to the extent that an adviser has different voting policies and procedures for strategies that address ESG-related matters, or for different clients or different ESG-related strategies, the adviser would be required to describe those differences.

4. Wrap Fee Brochure Disclosures (Form ADV Part 2A, Appendix 1) (Wrap Fee Brochures)

The Proposing Release sets forth specific ESG-related disclosure requirements for Wrap Fee Brochures that correspond with the above-discussed requirements. An adviser would be required in Item 4 of its Wrap Fee Brochure to describe the ESG factors that the adviser considers in its wrap fee programs, and how it incorporates the ESG factors under each program.

For advisers that consider ESG factors when selecting, reviewing, or recommending portfolio managers within the wrap fee programs that they sponsor, the adviser would be required to describe the ESG factors it considers and how it considers them. More specifically, the SEC noted three required disclosures:

• The criteria and methodology the adviser uses to assess the portfolio managers’ application of the relevant ESG factors into its portfolio management;
   
• An explanation of whether the adviser or a third party reviews the portfolio managers’ application of the relevant ESG factors; and
   
• A statement, if applicable, that neither the adviser nor a third party assesses the portfolio managers’ application of the relevant ESG factors into their portfolio management or that the portfolio managers’ applications of the relevant ESG factors cannot be calculated, compiled, assessed, or presented on a uniform or consistent basis.

Finally, a wrap fee sponsor that also acts as a portfolio manager for a wrap fee program would be required to respond to new Item 8.D. discussed in detail above.

3. Regulatory Reporting on Form N-CEN and Form ADV, Part 1A

1. Form N-CEN⁸

The SEC proposes to require a registered fund that states that it incorporates ESG factors to report, among other things: (i) the type of ESG strategy it employs (i.e., integration, focused, or impact); (ii) the ESG factor(s) it considers (i.e., E, S, and/or G); and (iii) the method it uses to implement its ESG strategy (i.e., tracking an index, applying an inclusionary and/or exclusionary screen, proxy voting, engaging with issuers, and/or other). An Impact Fund would be required to report that it is both an ESG-Focused Fund and an Impact Fund.

The proposed amendments to Form N-CEN would also collect information regarding whether a fund considers ESG-related information or scores provided by ESG providers in implementing its investment strategy. If so, the fund would be required to provide the legal name and legal entity identifier (LEI), if any, or provide and describe other identifying numbers of each such ESG provider. A fund would also be required to report whether the ESG provider is an affiliated person of the fund.

The proposed amendments to Form N-CEN would also require a fund to report whether it follows any third-party ESG frameworks. If so, the fund would be required to provide the full name of the ESG framework(s).

Another proposed amendment to Form N-CEN would more broadly apply to any index fund, regardless of whether the fund incorporates ESG factors. The SEC would require each index fund to report the name and LEI, if any, or provide and describe other identifying numbers of the index that the fund tracks.

2. Form ADV, Part 1A

The SEC has also proposed to amend Form ADV, Part 1A. The Part 1A amendments would expand the SEC’s collection of information from advisers to separately managed accounts (SMAs) and private funds. It would also require advisers, and their related persons, to make certain disclosures regarding industry affiliations with ESG providers.

More specifically, the proposal would amend Item 5.K of Part 1A, and corresponding sections of Schedule D, which requires advisers to provide information about their advisory business with respect to SMAs and reported private funds. Under the proposal, an adviser would be required to disclose whether it considers ESG factors as part of one or more significant strategies in the advisory services it provides to SMAs and/or private funds. This includes a specific requirement that an adviser indicates whether it employs an integration, ESG-focused, or ESG-impact approach (or any combination of the three). The proposal would further require an adviser to report whether it follows any third-party ESG frameworks in connection with its advisory services and report the name of the framework. Finally, it would amend Items 6 and 7 of Part 1A to require that all advisers, including exempt reporting advisers, disclose whether they or their related persons conduct business as ESG-providers.

4. Compliance Policies and Procedures and Marketing

The proposal also includes a section addressing funds’ and advisers’ compliance policies and procedures when they incorporate ESG factors. The SEC admonishes funds and advisers that their compliance policies and procedures should address the accuracy of ESG-disclosures made to clients, investors, and regulators. The policies and procedures should also address portfolio management processes to help ensure portfolios are managed consistently with the ESG-related investment objectives disclosed by the adviser and/or fund. The SEC specifically cautions advisers:

If an adviser discloses to investors that it considers certain ESG factors as part of an integration strategy, the adviser’s compliance policies and procedures should be reasonably designed to ensure the adviser manages the portfolios consistently with how the strategy was described to investors (e.g., actually considering the ESG factors in the way it says it considers them). If a registered fund discloses to investors that it adheres to a particular global ESG framework, its policies and procedures should include controls that help to ensure client portfolios are managed in accordance with that framework. Similarly, if an adviser uses ESG-related positive and/or negative screens on client portfolios, the adviser should maintain adequate controls to maintain, monitor, implement, and update those screens. Relatedly, if an adviser has agreed to implement a client’s ESG-related investing guidelines, mandates, or restrictions, the adviser’s compliance policies and procedures should be designed to ensure these investment guidelines, mandates, or restrictions are followed. If an adviser discloses to investors that ESG-related proxy proposals will be independently evaluated on a case-by-case basis, the adviser should adopt and implement policies and procedures for such evaluation. In addition, if an adviser advertises to its clients that they will have the opportunity to vote separately on ESG-related proxy proposals, the adviser must provide such opportunities to its clients to the extent applicable and should maintain internal policies and procedures accordingly.

The SEC also took the opportunity in the Proposing Release to remind advisers of their obligation under Rule 206(4)-8 under the Advisers Act to avoid making false or misleading statements to existing or prospective investors. This is of particular concern to the SEC in the context of ESG investing, where advisers have been subject to allegations of so-called “greenwashing”. The SEC specifically noted in the Proposing Release that “it would generally be materially misleading for an adviser materially to overstate in an advertisement the extent to which it utilizes or considers ESG factors in managing client portfolios.”

5. Effective and Compliance Dates

If the rules and amendments are adopted, the SEC proposes that they take effect 60 days after publication in the Federal Register and that the compliance date fall one year after the effective date.

Conclusion

In 2010, the SEC observed:

In the past, Part 2 [of Form ADV] has required advisers to respond to a series of multiple-choice and fill-in-the-blank questions organized in a “check-the-box” format, supplemented in some cases with brief narrative responses . . . . In 2008, we proposed a different approach to enhance the disclosure statement advisers provide to their clients. Instead of the check-the-box format, each adviser registered with us would provide clients with a narrative plain English brochure . . . . Our proposal was designed to require advisers to disclose meaningful information in a clearer format.⁹

The SEC’s proposed rulemaking – in particular, the proposed ESG Strategy Overview Table with its check-the-box requirements – represents at least a partial rejection of that philosophy. Moreover, the SEC’s proposed rulemaking manifests a disproportionate focus on GHG, at the expense of other ESG factors. However, the SEC nowhere justifies why GHG merits a greater emphasis than other ESG factors, such as, for example, worker safety or board independence standards.

The SEC has given commenters until 60 days after publication in the Federal Register¹⁰ to comment on this sweeping proposal.

If you have any questions about this legal alert, please feel free to contact any of the attorneys listed under Related People/Contributors or the Eversheds Sutherland attorney with whom you regularly work.

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