Stein's Law Meets 'ESG' Investing

The late conservative economist Herb Stein was the author of a law of economics that says “If something cannot go on forever it will stop.” Pessimists looking at China’s Great Leap Forward or the Soviet Union’s Lysenkoism-induced famine remind us that even if that “something” stops it can often cause immeasurable harm until it finally does.

The California Public Employee’s Retirement System (CALPERS) which controls $444 billion in assets for the benefit of two million state public employees, retirees, and families is certainly putting Stein’s law to the test. For twelve years it has been using those assets contrary to sound fiduciary principles, choosing instead to purchase stocks based on the notion of companies’ ESG (social, environmental and governance ) practices. In 2010, it committed $500 million to such investments.

Oops.

Heather Gilbert in the Wall Street Journal reports the sad state of this new virtue signaling investment policy:

The nation’s largest pension fund got a scathing performance review Monday when its new investment chief highlighted the retirement system’s underperforming returns and estimated it missed out on $11 billion in gains during a “lost decade” for private equity.

The unusually candid presentation to board members of the California Public Employees’ Retirement System, known as Calpers, showed returns lagging behind other large pensions in almost every asset class during the past 10 years, with private equity trailing the most, 1.3 percentage points. ... We underperformed every one of our peers on the upside, all with the promise that when we got to the downside we would be better protected than other funds,” Terry Brennand, director of budget, revenue and pensions for the Service Employees International Union’s branches in California, said during the public comment portion of Monday’s investment committee meeting. Instead, “we continued to underperform our peers.”

As a matter of fact, more than just its private equity portfolio underperformed other large pension funds. Calpers ESG portfolio underperformed other large pension funds in stocks and income. But its officers seem to see no connection between these policies and the fund’s poor performance.

As the Journal’s James Freeman reports, last year Calpers asked one of the most successful firms, Berkshire Hathaway, to provide “more disclosures on climate-related risks and opportunities” and withheld its votes to re-elect members of Berkshire’s audit and governance committees because it was unhappy with their climate risk disclosures.

One can certainly argue that Berkshire’s performance in recent years could have been better, but does anyone think Calpers officials have a better understanding of investment risk than Warren Buffett? Calpers’ disappointing decade is another reminder that taking care of retirees’ investments requires profits, not politics.

Corporate returns are likely to be far worse this year. How long can Calpers continue playing politics with public employees’ money? Alas, Herb Stein is not around to take a guess, but ours is: indefinitely, until it can't.

Investing 'Ethically'? Prepare to Lose Your Shirt

It’s starting to look as if the world is emerging, albeit slowly and reluctantly, from the utopian dream of halting and reversing climate change by policies based on almost exclusively on mitigation rather than on adaptation. These two approaches have always been the practical choice between real-world alternatives. A mixture of the two leaning mainly towards adaptation is probably the best approach since the costs of mitigation—as in achieving Net-Zero carbon emissions—are huge and its benefits either modest or unachievable.

For reasons outside the scope of this short commentary, however, the world’s governments and global agencies have placed all their money on the mitigation approach. I write carelessly “their money.” It is, of course, other people’s money. And we are gradually discovering just how much of other people’s money they are investing in climate change mitigation. Prepare to be shocked.

Recently the Financial Times reported as follows:

Thirty of the world’s biggest asset managers, which collectively oversee $9tn, have set a goal of achieving net zero carbon emissions across their investment portfolios by 2050 in a move expected to have huge ramifications for businesses globally. The group, which includes Fidelity International, Legal & General Investment Management, Schroders, UBS Asset Management, M&G, Wellington Management and DWS, said they would work with their clients to cut emissions across their investments.

That attracted the attention of National Review’s Andrew Stuttaford (full disclosure: an old friend) who devoted his regular weekly column on finance to examining how and why Wall Street decided to plunge so wholeheartedly into green ink investments. It’s a real humdinger of a column because it solves a financial mystery.

Nowhere to go but down.

After all, the purpose of investment institutions is to deliver the best return on the money that they are lent by savers and pensioners. If an investment house says that it intends to make mitigating climate change one of its main aims, it’s also telling you that your money will be getting a lower rate of return than it otherwise might. That’s a clear betrayal of the fiduciary duty that agents owe to their principals—unless they level with them and admit the likely loss.

That’s exactly what happens with other ESG funds, and I’ve no doubt that this admission will appear in the middle of the voluminous fine print which warns purchasers that socially conscious investments are likely to perform less well than the average. At the same time all the great and the good of the financial, political, and regulatory world from Al Gore to Mike Bloomberg to Mark Carney are bent on assuring nervous investors that they are making a prudent decision in going green.

Their argument boils down to claiming that any investor risks from green investments are trivial compared to the risks of investing in fossil fuels which are likely to prove unprofitable investments in a world moving towards Net-Zero and which might make those companies vulnerable to expensive lawsuits and regulatory restrictions.

The fallacies embedded in that argument were challenged by me in February last year in the first column I wrote for The Pipeline—which was a criticism of Mark Carney’s strident advocacy of strong measure of financial regulation to direct investors into the “right” green companies.

Yet if these climate forecasts are either exaggerated or simply uncertain [as they are], what is the test which would tell us with some reliability that the market demand for fossil fuels is likely to fall along with the value of companies that extract them. It cannot be the additional stress tests or capital requirements that regulators may want the banks to impose on energy companies, for then the regulators would be using their own interventions as the justification for intervening. As yet, however, non-official market participants can’t seem to see spontaneous causes for this threat to the energy sector.

But my tentative point is made more vividly and powerfully by the economist John Cochrane (quoted by Stuttaford) in an address to the European Central Bank in a reply to one of its senior executives:

Let me quote from ECB executive board member Isabel Schnabel’s recent speech. I don’t mean to pick on her, but she expresses the climate agenda very well, and her speech bears the ECB imprimatur. She recommends that,

‘First, as prudential supervisor, we have an obligation to protect the safety and soundness of the banking sector. This includes making sure that banks properly assess the risks from carbon-intensive exposures. . . .’

Let me point out the unclothed emperor: climate change does not pose any financial risk at the one-, five-, or even ten-year horizon at which one can conceivably assess the risk to bank assets. Repeating the contrary in speeches does not make it so. Risk means variance, unforeseen events. We know exactly where the climate is going in the next five to ten years. Hurricanes and floods, though influenced by climate change, are well modeled for the next five to ten years. Advanced economies and financial systems are remarkably impervious to weather. Relative market demand for fossil vs. alternative energy is as easy or hard to forecast as anything else in the economy. Exxon bonds are factually safer, financially, than Tesla bonds, and easier to value. The main risk to fossil fuel companies is that regulators will destroy them, as the ECB proposes to do, a risk regulators themselves control. (My italics.)

“A risk regulators themselves control.” I hesitate to accuse a former governor of the Bank of England, a former Vice President of the United States, and a former Mayor of New York of financial legerdemain, but I think there are laws against stock manipulation of that kind—though I doubt legislators ever envisaged fraud on the scale of nine trillion dollars.

My own advice to investors and pension fund managers is to fight shy of the “watermelon investments” recommended by the great and good. They are written in Green ink today, Red ink tomorrow.

Consider tobacco companies instead. They survived the legal and regulatory onslaught, and today they’re nice little earners.

When 'Social Justice' Comes to Investing

Trillions of dollars sit in private trusts, pension and retirement accounts, and charitable endowments, and they are targets of those who wish to reshape domestic investments, corporate governance and means of energy production. I recall years earlier when people and outfits who wished to accomplish such things bought stock and made pests of themselves at shareholders meetings, or ran well-funded public relations campaigns against investment in South African companies or nuclear energy, to take two historical examples of “active shareholding.” In recent years they’ve devised another means: pressuring trustees of these funds and fiduciary investment managers to consider Environmental, Social and corporate Governance (ESG) analyses in their investment buys. A quick Google search shows a number of providers vying to assist (for fees ) trustees in making such investments.

The most detailed explanation of the history and pitfalls of this strategy—economic and legal—is in this Stanford Law Review article: The authors, Max M. Schanzenbach and Robert H. Sitkoff, are writing for a very specific audience and you are encouraged to read it all if you want a more complete analysis, but here’s a short take on it as it involved institutional investors, index funds , endowments and trust companies. Such investing may well place trustees at risk of violating their fiduciary duty of loyalty under which they must consider only the interests of the beneficiary.

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Fiduciaries motivated, even in part, by any other thing—sense of ethics, benefit to third parties, for example -- violate their duty of loyalty. While trustees of a charitable endowment whose settlor or beneficiaries okay such considerations, might do this without violating the rule of loyalty, trustees of institutional investors, trust companies and even index funds run a risk if they do.
In the first place, the very concept ESG investing lacks precise definition.

All told, the fluidity of the ESG rubric means that assessment and application of ESG factors will be highly subjective. Like any form of active investing, risk-return ESG investing necessarily involves subjective judgments in the identification of relevant factors, assessing whether they are good or bad from an investor’s perspective, and how much weight to give each factor. However, this subjectivity makes both application and empirical evaluation of ESG investing challenging and highly contextual. As some astute commentators recently noted, “the breadth and vagueness of the factors as a whole, and the likelihood that different factors bear on different investments, present barriers to their widespread use as investment guides.

What are the social and environmental impacts of a firm’s products or practices? Is a gas pipeline better for the wildlife in the area it runs through than a solar or wind farm? (No one’s surveying the views of the caribou in Alaska who seem to love the pipeline, or the avian communities fried or turned to pate by solar and wind farms.)What are the environmental costs to producing the glass and aluminum to create solar panels or the cost of disposing of no longer useful wind turbines ?

The favorable empirical results regarding environmental and social factors, however, are not uniform. A significant concern is that managers may invoke ESG factors to enact their own policy preferences at the expense of shareholders—an agency problem for which there is also some empirical evidence. Another concern is that the extent of a firm’s regulatory and political risks may not be reflected in its ESG scoring. For example, companies pursuing alternative energy sources may score high on ESG factors but still face significant political and regulatory risk owing to heavy reliance on current government policy. Indeed, one of the Commissioners on the Securities and Exchange Commission (SEC) has suggested that the SEC has not yet taken a position on ESG disclosure in part because defining ESG factors is value laden and would involve confronting contentious political issues.

And then there’s corporate governance. Some corporate governance issues are obvious—lack of a sound auditing and accounting operation or frequent litigation losses for bad labor practices or unhealthy products. The social factors are even more subjective and not well validated by empirical evidence. The effect of sex and race diversity on the corporate board doesn’t seem measurable or even relevant to how prudent an investment might be in a company. The number of factors one might consider under this category seems inexhaustible.

The fluidity of the ESG parameters and the obvious subjectivity involved in weighing them should concern trustees. Aside from subjecting them to litigation for losses due to erroneous assessments on ESG investments, trustees can be removed, enjoined, forced to repay the trust for losses and so forth for breaching their duty of loyalty to the trust. To defend against such claims, the trustee who picks and chooses among investments on the basis of ESG strategies, must have documented analyses showing he’s made a realistic risk-loss return estimate and must also reevaluate these analyses regularly, a costly undertaking. So, to take an example near at hand, if President Obama made the cost of fracking higher through regulatory constraints on it and the trustee eschewed investing in such companies under his analysis of risk-reward, President Trump’s support for fracking certainly changes the equation. So does the I hope temporary dislocation of that market due to the Wuhan virus shutdowns. The trustee has to reconsider original action and readjust the portfolio. The risk-reward equation has shifted.

If independent analysis shows the ESG models the trustee relied upon resulted in statistically significant under-performance, the fiduciaries who relied upon those models may well have breached their duty of loyalty and be subject to litigation by the beneficiaries of the trust. And any claims that ESG investment strategies provide superior returns are far from certain. Even more troublesome in the authors’ view is this: if corporations draw a lot of ESG investment on the grounds that they are undervalued from a risk-reward standard by their lights, they may soon become overvalued. Contrarian strategies seem then to be attractive.

Going belly-up for climate change.

A few months ago, concerns were highlighted in a dispute involving the trustees of the California State Pension Fund (Calpers) and other major pension funds.

In the last two years, its directors have opposed proposals to sell stocks in private prisons, gun retailers and companies tied to Turkey because of the potential for lost revenue and skepticism about whether divestment forces social change. One of these directors is now urging the system, also known as Calpers, to end its ban on stocks tied to tobacco, a policy in place since 2000. “I do see a change,” said that director, California police sergeant Jason Perez, in an interview. “I think our default is to not divest.”

Calpers isn’t the only system wrestling with these new doubts. Rising funding deficits are prompting public officials and unions across the U.S. to reconsider the financial implications of investment decisions that reflect certain social concerns.

The total shortfall for public-pension funds across the U.S. is $4.2 trillion, according to the Federal Reserve. New York state’s Democratic comptroller and unions representing civil service workers oppose a bill in the Legislature to ban fossil fuel investments by the state pension fund. In New Jersey, Gov. Phil Murphy, a Democrat, vetoed legislation last year that would have forced divestment of state pension dollars from companies that avoid cleaning up Superfund sites by declaring bankruptcy...

The board now plans a comprehensive review, scheduled for 2021, of all of Calpers’ existing divestment policies, which include bans on investments in companies that mine thermal coal, manufacturers that make guns illegal in California and businesses operating in Sudan and Iran.

And then there are outfits like Black Rock which seemingly to court millennial investors are weighing such factors. Is it, in danger of violating its duty of loyalty? Bernard Scharfman thinks they may be. He hints that this virtue-signaling may be an effort to draw in Millennial investors, and discusses the practical limitations of Black Rock’s stated plan to weigh companies’ stakeholder relationships in weighing investments. He says this sort of shareholder activism may breach the duty it owes to its own investors:

So while Black Rock’s shareholder activism may be a good marketing strategy, helping it to differentiate itself from its competitors, as well as a means to stave off the disruptive effects of shareholder activism at its own annual meetings, it seriously puts into doubt Black Rock’s sincerity and ability to look out only for its beneficial investors and therefore may violate the duty of loyalty that it owes to its current, and still very much alive, baby-boomer and Gen-X investors. In sum, if I were running the Department of Labor or the Securities and Exchange Commission, I would seriously consider reviewing Black Rock’s strategy for potential breaches of its fiduciary duties.

If people really want to put their money into virtue-signaling instead of reasonable returns, why doesn’t someone just create a Virtue Fund? Investors would agree not to hold the managers of it accountable for losses as long as the investments tickle their fancy. That would leave those of us such as the Calpers beneficiaries who rely on secure returns to use more traditional measures of risk and reward (like debt-equity, dividends and price-earnings ratio) which have an historical measure of efficacy.