New York Renewable Energy Storage: Futuristic Success or Ongoing Injustice?
By: Samirah Aziz
This article was originally published on October 8, 2025, in Volume 1, Issue 1 of the R.E.A.C.T. by PECC Newsletter.
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.
This article was written by PECC's Energy and Climate Law Scholar Samirah Aziz, a law student at Elisabeth Haub School of Law at Pace University and winner of the Pace Energy and Climate Center Fall 2025 Writing Competition.
Editors: Mercè Martí I Exposito, Frances Gothard, Carington Lowe