ESG Investing Rule Can Stand Without Chevron Deference, US Says

The Labor Department’s ESG-friendly 401(k) investing rule should be upheld on the merits by the Fifth Circuit, the Justice Department said Monday in a letter addressing the US Supreme Court’s decision last week to abandon the Chevron doctrine of deference to administrative agencies.

The DOJ said it didn’t invoke Chevron deference in its March 2024 brief asking the US Court of Appeals for the Fifth Circuit to uphold a 2022 rule giving retirement plan fiduciaries greater flexibility to consider “non-pecuniary” factors like environmental, social, and corporate governance goals as a tiebreaker when selecting investments. It also said the court need ...