Articles by Energy & Climate Law Scholars
This page features original research and articles by PECC Energy and Climate Law Scholars on energy and environmental law topics. The highlighted pieces explore emerging legal issues, policy developments, and innovative solutions, showcasing the capabilities of the next generation of environmental leaders.
New York Renewable Energy Storage: Futuristic Success or Ongoing Injustice?
By: Samirah Aziz J.D. '26 | Editor: Mercè Martí I Exposito
In early 2025, a massive fire burned for days at a California battery energy storage facility. The disaster forced hundreds of evacuations, raised health concerns, and sparked public backlash. This backlash came not only from Californians directly impacted by the blaze but also from New Yorkers living in municipalities with battery energy storage system (“BESS”) proposals. Although BESS proponents describe BESSs as passive facilities to store unused renewable energy for future use, protesting New Yorkers feared that if BESSs were built near their communities, they could also be in danger.
BESS construction has been increasing in New York given the state’s energy goals in response to the climate crisis. Since 2019, New York has significantly increased its renewable energy use following the passage of the Climate Act, which mandates a 40% reduction in greenhouse gas emissions by 2030. Accordingly, Governor Hochul has encouraged BESS construction as instrumental to reaching the Act’s goals. However, BESSs are relatively recent: the first publicly owned, utility-scale BESS in New York only became operational in 2023.
Additionally, other state laws are implicated within the BESS siting context. In particular, the State Environmental Quality Review Act (“SEQRA”) and the Cumulative Impacts Law (“CIL”) may apply to BESS applicants. In response to Environmental Justice (“EJ”) concerns – including those about municipalities disproportionately siting undesirable land uses near disadvantaged communities – the CIL amended SEQRA to further address equitable siting of environmental projects such as BESSs. Specifically, the CIL provides that BESS applicants may need to include existing burden reports with their applications if the projects have over a "de minimis amount of pollution to any disproportionate pollution burden on a disadvantaged community.” However, this law is limited because it does not require a burden report for applicants seeking BESS modification or renewal, including those who have completed such reports for their BESSs within the past decade. Therefore, the CIL should be amended to require or incentivize existing burden reports for BESS renewal or modification applicants. Such measures would better protect disadvantaged communities from disproportionately bearing the risks associated with BESSs.
BESSs’ Connections to Disadvantaged Communities
Disadvantaged communities’ potential disproportionate impacts from BESS siting stem from Village of Euclid v. Ambler Realty Co. In that landmark case, a village passed zoning ordinances dividing it into distinct use districts. The petitioner challenged the constitutionality of the ordinances since they prevented him from using his property in one district for purposes beyond those permitted within it. The U.S. Supreme Court held that the ordinances were constitutional because municipalities possess flexible police power, granting them discretion over zoning laws as long as the laws are reasonable and enacted “for the public welfare.” However, the Court did not elaborate on the meaning of that phrase, leaving it open to municipal interpretation. For example, municipal zoning regulations often raise residential property values “for the public welfare” in areas located farther from locally undesirable land uses (“LULUs”) while reducing residential property values near LULUs. As a result, disadvantaged communities tend to live in zoning districts near LULUs due to the lack of affordable alternatives.
Although LULUs have traditionally included factories and landfills, BESSs arguably constitute a new form of LULUs. A 2024 American Planning Association report indicates a lack of nationally uniform land use standards for BESSs. This suggests that there is little to no accountability preventing municipalities from siting BESSs in disadvantaged communities, especially given the Euclid precedent. Additionally, the National Fire Protection Association Standard (“NFPA”) 855 requirements for applicants’ approach to BESS hazards fails to provide a “full spectrum of [safety] requirements.” As a result, there is ample grey area that allows municipalities to continue implementing discriminatory zoning ordinances through BESS siting.
Potential Solutions
Based on the overall lack of statewide BESS resources, there is a gap in legislative knowledge on BESSs that should be amended. One potential solution is for municipalities or the state of New York to incentivize BESS renewal or modification applicants to complete existing burden reports. One potential incentive could be a statewide tax benefit for applicants. For example, the Empire State Development agency (“ESD”) has worked with the state to financially incentivize businesses to improve their facilities, among other incentives. New York policy makers, ESD, and other stakeholders should hold ongoing events centered on the potential for similar tax incentives for BESS applicants voluntarily completing existing burden reports. Such events may spur broader discussions about EJ concerns in the BESS and zoning contexts.
Another potential measure would be amending the CIL to require existing burden reports for all BESS applicants. Given the CIL’s voluntary approach to existing burden reports for BESS renewal or modification applications near disadvantaged communities, such an amendment would be ideal for expanding the reach of existing burden reports to all BESS projects shown to have more than a de minimis pollution impact on disadvantaged communities.
Additionally, other potential CIL amendments may supplement the existing burden report requirement to better address EJ concerns. One such amendment could establish a thorough, scientifically and historically informed definition of “disproportionate pollution burden,” which would help SEQRA review agencies make more informed decisions on BESS siting. The CIL could also be amended to include an EJ Working Group, similar to the Climate Justice Working Group that advises the Climate Action Council on the needs of disadvantaged communities. The proposed working group could work closely with the leading agencies on SEQRA approval requirements, scrutinizing each BESS application’s potential EJ impacts and discussing those impacts with the agencies prior to their final decisions. This group could include members from disadvantaged communities located near BESSs. By taking such measures, New York may move closer to a future that works synergistically with disadvantaged communities and renewable energy.
A Bright Future and a Dark Legacy: The Future of Nuclear Energy and Waste Disposal in New York
By: Thomas Glawson J.D. '27 | Editor: Mercè Martí I Exposito
On June 23, 2025, New York Governor Kathy Hochul issued a directive to the New York Power Authority (“NYPA”) to develop and construct a zero-emission advanced nuclear power plant in Upstate New York. This directive comes as New York electrifies its economy, phases out fossil fuel power generation, and continues to attract large manufacturers that demand significant and reliable electricity. Governor Hochul emphasizes an “energy policy of abundance” that centers on ensuring New York controls its energy future, highlighting the "radical increase” in electric supply that will be necessary over the next fifteen years to prevent “rolling blackouts.” This directive is designed to complement existing renewable energy deployment by “adding zero-emission baseload power, providing reliable and affordable clean energy to advance the State’s goal to achieve a clean energy economy” and to meet surging demand from industrial development, building electrification, and electric vehicles.
The NYPA, in coordination with the Department of Public Service (“DPS”), will seek to develop at least one new nuclear energy facility with a combined capacity of no less than one gigawatt of electricity – capable of powering approximately one million homes – either alone or in partnership with private entities, to support the state’s electric grid as well as the people and businesses that rely on it. The NYPA immediately began work on this directive, including site and technology feasibility assessments as well as financing options, in coordination with forthcoming studies included in the master plan for Responsible Advanced Nuclear Development in New York, led by the New York State Energy Research and Development Authority (“NYSERDA”) and DPS. Additionally, this initiative plans to build on existing state financial support for Constellation Energy to pursue early site permitting for a new project at its Nine Mile Point Clean Energy Center, fostering future collaboration with other states and Ontario to strengthen nuclear supply chains.
The plan has received widespread support. Labor unions have praised the initiative for its potential to create thousands of family-sustaining union careers that “pump economic stimulus” into local communities. Business leaders and economic development councils have likewise expressed enthusiasm, emphasizing the need for affordable, reliable, and clean electricity to support fast-growing industries such as semiconductors and artificial intelligence. Environmental groups and experts have also backed the plan, stating that nuclear energy is an “essential strategic asset” for decarbonization and grid reliability.
Despite the initiative’s praise, concerns over nuclear waste remain a key point of opposition. State Senator Liz Krueger stated in a press release: “Can the radioactive material be disposed of in a satisfactory way, or will New Yorkers be stuck dealing with more long-term storage sites like West Valley?” Likewise, Executive Director Stephan Edel of NY Renews, a progressive pro-renewables group, came out against the expansion or further investment in nuclear energy production, expressing concerns over the handling of radioactive materials throughout their lifecycle.
The West Valley Demonstration Project (“WVDP”) is frequently invoked by critics, as its dark legacy looms over New York: “While other countries such as France and Russia recycle nuclear waste, the United States abandoned commercial recycling in the 1970s”. The WVDP was once home to the only commercial spent nuclear fuel recycling center in the U.S., operating from 1966 until 1972, when it shut down due to new regulatory requirements and assessments concluding the site was no longer economically viable, leaving behind 600,000 gallons of liquid high-level waste. It continued as a low-grade nuclear waste storage facility for an additional three years until it was discovered that water infiltration was “caus[ing] contaminated water to overflow from the trenches.”
Congress passed the West Valley Demonstration Project Act in 1980, directing the Department of Energy to solidify and remove the waste from the site, decontaminate and decommission the facility and surrounding property, and – through an agreement with NYSERDA – determine an operational framework for cleanup activities at the site. More than four decades later, West Valley still contains contaminated soil, over fifty casks of high-level radioactive waste with no permanent disposal solution, and remaining cleanup work that could potentially cost billions of dollars. West Valley’s “legacy of toxic pollution” underscores the severe consequences of historical spent fuel processing and magnifies public and legislative anxiety over new long-term storage sites and disposal in New York.
New York statutes strictly govern nuclear waste disposal. For high-level waste, such as spent fuel, permanent terminal storage requires concurrence by statute from the Governor and legislature, requiring NYSERDA to conduct extensive safety reviews and public hearings. For low-level radioactive waste, generators must pay fees to fully recover all state management costs, and title to the waste remains with the generator. Temporary repositories require a certificate from the state board overseeing temporary nuclear waste repository siting, and other state and municipal agents are generally barred from requiring additional approvals.
To overcome this hurdle, New York is seeking innovative solutions for nuclear byproducts. The state’s $300 million venture fund is actively pursuing technologies to recycle nuclear waste into new fuel. Carl Perez, the chief executive of the nuclear services company Exodys Energy, described New Yorkers as “visionaries” for exploring this path. This approach aims to utilize spent nuclear fuel more efficiently; many nuclear power advocates use the term “renewable” to describe the potential of running reactors on recycled waste rather than newly mined uranium.
If successful, Governor Hochul’s nuclear initiative will deliver critical, affordable, and clean energy to New York for generations to come, while creating thousands of jobs and attracting critical business investments. Overcoming the toxic legacy of West Valley and resolving the state’s nuclear waste challenges remains a monumental task that, if achieved, could position New York as a national leader in zero-emission energy and at the forefront of the fight against climate change.
When Washington Stalls, States Power Forward
By: Ashely Hipnar J.D. '28 | Editor: Mercè Martí I Exposito
Federal energy and climate law swings like a pendulum, as Obama’s Clean Power Plan gave way to Trump’s lenient Affordable Clean Energy Rule, followed by Biden’s ambitious Inflation Reduction Act (2022). The result? A federal system that feels unreliable and unstable under the constantly shifting political winds. Meanwhile, states are taking the lead, experimenting with renewable energy mandates, emissions caps, and environmental justice programs. These efforts are not just patchwork fixes, they are real laboratories of “climate federalism” that could outlast the ups and downs of Washington politics.
Federal Volatility
Federal climate and energy policy remains volatile by design. Executive orders are routinely used to reverse prior administrations’ directives: President Biden signed twenty-four reversals in his first hundred days, while Trump rescinded eighty on the first day of his second term. These rapid shifts often stretch statutory authority, bypassing Congress to pursue partisan goals. Meanwhile, legislative gridlock has stalled meaningful bipartisan progress since the 1990s. The recent “megabill”, passed in July 2025, marked a significant rollback of climate initiatives. Judicially, decisions such as West Virginia v. EPA (2022) and the overturning of Chevron in Loper Bright Enterprises v. Raimondo (2024) have further constrained federal regulatory power, deepening the instability of long-term energy and climate governance.
State Leadership
While Washington stalls, states have become the backbone of U.S. climate action, advancing durable policies that outlast election cycles. California’s Zero-Emission Vehicle (“ZEV”) mandate, first adopted in 1990 and strengthened fourteen times since, now requires all new passenger cars, trucks, and SUVs to be zero-emission by 2035. This is especially significant as the EPA’s authority to regulate greenhouse gases faces threats from efforts to repeal the Endangerment Finding.
Meanwhile, eleven northeastern states joined forces through the Regional Greenhouse Gas Initiative (“RGGI”), the “first mandatory cap-and-trade program in the United States to limit carbon dioxide from the power sector.” These eleven states set a regional cap on carbon dioxide emissions from regulated power plants, reducing the allotted emissions over time. Since 2005, RGGI has cut power-sector emissions by 50%, nearly twice the national speed, while generating $8.6 billion for community investment.
New York launched its own initiative in 2019 with the Climate Leadership and Community Protection Act (“CLCPA”), setting legally binding targets of “100% zero-emission electricity” by 2040 and at least an 85% emissions reduction from 1990 levels by 2050. The Act not only aims to create a healthier New York but also works to increase access to affordable energy through clean solutions, while empowering disadvantaged communities with quality-paying jobs and diversifying opportunities.
Minnesota has a similar plan. In 2023, the state passed a law requiring 100% carbon-free electricity by 2040, with interim steps of 80% carbon-free by 2030 and a requirement that utility retail electric sales increase renewable energy to 55% by 2035. While electrical utilities in Minnesota have decreased carbon emissions from 54% from 2005 to 2020, this law locks in that progress while giving them room to finish the job effectively.
Constitutionality
Environmental protection and public health have never been recognized as enumerated rights under the Constitution, and federal agencies are steadily losing authority in the environmental sphere. This makes federalism central to advancing clean energy standards and climate momentum. Under the Tenth Amendment, powers not delegated to the federal government are reserved to the states, giving them a vital role in regulating energy and protecting natural resources. As Justice Louis Brandeis famously observed, states act as “laboratories” of democracy, testing innovative solutions to pressing social and economic challenges (New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)).
States have broad authority to enact environmental protections but face recurring challenges from federal preemption. In 2024, the Trump Administration issued Protecting American Energy from State Overreach, an executive order aimed at curbing state and local climate policies. Such attempts raise serious constitutional questions, especially given that cornerstone environmental statutes–such as the Clean Air Act–explicitly preserve the ability of states to adopt more stringent standards than federal law.
These tensions are now playing out in court, as fossil fuel companies once eager to remove climate suits to federal forums, are increasingly being forced to defend themselves in state courts after repeated preemption arguments have failed. Right now, the real fight for clean energy is happening in the states, and that is where the momentum lies.