The following article, written by Deputy Executive Director Harrison Bench, is reprinted with permission from the New York State Bar Association. It appeared in Volume 46, Issue 1 of The New York Environmental Lawyer, which can be accessed at this link.

INTRODUCTION

“Cease and desist this absurdity or this… community will revolt.” [1] “[It’s] a nightmare waiting to happen.” [2] “Your lack of consideration for the people and the environment is appalling.” [3] These are just a few of the many public comments submitted to the New York State Public Service Commission (“PSC”) in opposition to expedited approvals for a proposed battery energy storage system (“BESS”) in Holtsville, NY, due to fears over fire safety. The PSC ultimately granted those approvals, though it acknowledged and sympathized with the substantive concerns raised by members of the community in its order. [4] In approving expedited approvals, the PSC placed several conditions on the developer to ensure that the commenters’ concerns regarding fire safety are adequately addressed. [5] Such conditions include the submission of an emergency operations plan, the submission of a fire control and suppression plan, annual trainings for local fire departments, and enhanced notification and reporting requirements. [6]

The PSC approved Holtsville Energy Storage’s Certificate of Public Convenience and Necessity in part due to the project’s connection to New York State’s climate and energy goals. [7] In 2019, Governor Andrew Cuomo signed into law the Climate Leadership and Community Protection Act (“CLCPA”), which was, at the time, the most ambitious piece of climate legislation ever passed in the United States. [8] The CLCPA mandates a 40% reduction in greenhouse gas emissions by 2030, and a 85% reduction by 2050. [9] It additionally set a target of 3 gigawatts (“GW”) of statewide energy storage capacity by 2030. [10] This goal was later doubled to 6 GW by an order of the PSC, which recognized the “significant strides” made by state agencies, utility providers, and electricity customers in exceeding the original target. [11]

As of January 31, 2026, there were 7,494 battery energy storage projects located in every county throughout New York State, with a total capacity of 529 megawatts (“MW”). [12] While the overwhelming majority of these projects have not experienced safety incidents, fires at three BESSs within the span of two months drew intense media attention and public scrutiny. [13] An analysis conducted by the Inter-Agency Fire Safety Working Group (“IAFSWG” or “Working Group”) found no reports of injuries resulting from the fires, nor any evidence of harmful levels of toxins in air, water, and soil samples collected from the areas surrounding the BESS facilities. [14] Yet, the damage was already done. Elected officials and editorial boards began advocating for pauses and reviews of BESS projects. [15] Public opinion also started to shift against battery storage, with some going as far as to publicly question the legitimacy of the health and environmental studies conducted after the fires. [16] A national survey released around the same time even found that fewer Americans supported battery storage (55%) than natural gas (75%) or nuclear energy (63%). [17]

New York State has taken steps to assuage these concerns. In 2023, Governor Kathy Hochul tasked the IAFSWG with investigating existing safety standards for BESSs and proposing recommendations to the Fire Code of New York State (“FCNYS”). [18] The following spring, the Working Group released their draft recommendations, which were finalized later that summer after the conclusion of the public comment period. [19] The final recommendations included enhanced notification systems, independent peer reviews of installation practices, expanded safety signage, industry-funded special inspections, robust emergency response plans, and more, for BESS facilities. [20] These recommendations were incorporated into the 2025 FCNYS, which was published by the State Fire Prevention and Building Code Council (“SFPBCC” or “Council”) in July 2025. [21] The New York State Energy Research and Development Authority (“NYSERDA”) has also developed model BESS regulations that municipalities can add to their local codes. [22]

Despite these developments, local governments across the State remain opposed to battery storage. Over the past few years, many have approved moratoriums explicitly prohibiting the development of BESSs within their jurisdiction. [23] Given the substantial volume of New York State case law on the subject, energy developers and project proponents may have several viable legal claims against local moratoria, particularly those not enacted for public purposes or implemented for excessive time periods. [24] Though no judicial decisions have thus far been issued regarding the legality of BESS moratoria, litigation may be helpful in nullifying and voiding local land use laws that prevent the development of this crucial green energy technology.

In Part I, I evaluate battery energy storage systems, beginning with their connection to climate, emissions, and renewable energy laws, goals, and targets. [25] Part I(A) explores the promises and the perils of variable renewable energy resources, such as solar and wind energy. [26] In Part I(B), I describe the science behind battery storage technology, the explosive growth of BESSs in recent years, and efforts states have undertaken to promote their deployment. [27] Next, in Part I(C), I assess the safety concerns that have been raised against battery storage facilities, with a specific focus on the threat of fires. [28] I further detail new regulatory and safety standard developments. [29] Part II begins with a brief discussion of local-level opposition to BESSs, despite regulatory and safety updates. [30] In Part II(A), I thoroughly examine several case studies of municipal BESS moratoria, including their motivations and consequences. [31] Finally, in Part II(B), I analyze existing moratoria case law from Courts within New York. [32] Using this as precedent, I argue that energy developers and/or BESS project proponents may be able to successfully challenge the validity of these moratoria. [33]

 

PART I: BATTERY ENERGY STORAGE SYSTEMS

Battery storage is an essential component of the green energy transition. Nearly two-hundred countries around the world are Parties to the Paris Agreement, which seeks to limit this century’s global temperature increase to no greater than 2 degrees Celsius above pre-industrial levels. [34] Approximately one-half of these Parties have separate net-zero greenhouse gas emission commitments enshrined in national law, policy, and/or executive strategy. [35] Though the Trump Administration withdrew the United States from the Paris Agreement and rolled back dozens of federal climate actions, many states and municipalities have adopted their own climate laws and decarbonization targets. [36] Coalition groups such as the U.S. Climate Alliance, America is All In, C40 Cities, and Climate Mayors have been organized to mobilize resources for subnational actors to push ahead despite setbacks at the federal level. [37] Non-governmental groups, too, have stepped up to the plate. Thousands of corporations, educational institutions, financial organizations, and other firms have set emissions goals, advanced sustainability efforts, and joined private-sector climate initiatives. [38]

A) Variable Renewable Energy

While energy efficiency upgrades, electrification, and carbon capture technology can lead to some emissions reductions, the aforementioned entities (both public and private) will not be able to meet their decarbonization goals unless they transition from conventional fossil fuel energy sources (such as coal, oil, and natural gas) to renewable energy sources (such as solar, wind, geothermal, and hydroelectric). [39] The wide-scale deployment of solar and wind energy is especially crucial to the green energy transition, yet valuable concerns have been raised. [40] As both types of energy rely on variable climatic conditions – unobstructed sunlight and wind, respectively – they are considered variable renewable energy (“VRE”) sources that, when connected to an electric grid, provide intermittent energy at potentially inopportune times. [41] Solar power generally peaks around midday, while peak energy consumption hours are often in the evening. [42] Cloud cover and latitude are other factors that influence solar output. [43] Wind power, on the other hand, can be harder to predict due to the more uncertain nature of wind patterns. [44] Topographic features and geographic conditions also impact the variability of these two energy sources. [45] 

These concerns aren’t just theoretical. Between 2022 and 2023, while solar power capacity (defined as the maximum amount of electricity that could be produced) in the United States grew by 23%, solar power generation (defined as the actual amount of electricity produced) grew by only 16%. [46] This trend was also seen with wind energy. Over the same period, wind power capacity grew by 4%, while generation fell by 2%. [47] Though many factors contributed to these incongruities, variability and intermittency are probable culprits. [48] 

Variability is a headache for grid managers at both ends of the spectrum. Undersupplies of VRE lead to increased dependency on other types of energy. Since the green transition is still relatively nascent, this usually means reliance on fossil fuel sources. In late 2024, wind power output in Germany was 25% lower than expected. [49] To compensate for this “dunkelflaute,” utility regulators authorized the highest-ever monthly rise in natural gas power generation, as well as the highest level of coal power generation in nearly 2 years. [50] Despite New York State’s emissions reduction mandates under the CLCPA, the decommissioning of the Indian Point nuclear plant was not offset with renewable energy, but rather with natural gas. [51] The resulting emissions increase was due, in part, to the power grid’s need for a reliable source of energy “when the wind isn’t blowing and the sun isn’t shining.” [52] 

Oversupplies of VRE are also challenges for grid operators. In California (and other places with high levels of insolation), solar power generation begins to rapidly decline in the evenings, when demand starts to climb up again. [53] This shift puts stress on the grid system, as conventional power plants (often fueled by natural gas) need to quickly produce electricity to meet demand. [54] There are even days when solar generation is so high that operators have to manually curtail how much power is added to the grid. [55] While only about 1.5-4% of VRE is curtailed in most major renewable energy markets around the globe, this share is increasing year-to-year. [56] This trend should raise alarm bells; increasing amounts of VRE are effectively being lost, threatening both the viability of large-scale renewable energy investments and the likelihood that emissions reduction laws and targets will be met.

B) Battery Storage Technology

Fortunately, we have a solution to address this growing problem: batteries. Inside of batteries, electrical energy is stored as chemical energy. [57] The flow of electrons and ions between electrodes within a battery allows for the discharge of stored energy. [58] Battery storage is not a novel concept. The first battery was invented by Alessandro Volta in 1800, when he combined discs of zinc and cooper with an electrolytic solution to store electrical energy. [59] In the 225+ years since then, battery storage has evolved tremendously. Development of lithium-ion batteries began in the 1970s, when scientists at Stanford University and Exxon laboratories in New Jersey began researching intercalation, a process through which ions or molecules are inserted into existing host materials. [60] These batteries are now widely used and can be found in products ranging from smartphones to electric vehicles. [61]

In recent years, lithium-ion batteries have also been widely used to store energy produced from VRE sources and discharge it to electrical grids when needed. [62] These BESSs are often divided into two categories: utility or large-scale (those with greater than 1 megawatt (MW) of net generation capacity, which are typically owned by electric utilities or independent power producers) and small-scale (those with less than 1 MW of net generation capacity, which are typically owned by individual electricity customers, such as homeowners or businessowners). [63] This paper focuses on the former.

The growth of utility-scale BESSs in the United States has been exponential. Between 2019 and 2022, total utility-scale battery storage power capacity grew from 170 MW to 8,842 MW – a 5,200% increase. [64] In just 2025 alone, 25 gigawatts (GW) – or 25,000 MW – of battery storage capacity was brought online, with many facilities being co-located with solar or wind energy facilities. [65] Widespread co-location could effectively end, or at least drastically reduce, the manual curtailments that have been necessary for some electrical grids to maintain stability. [66] Other reported BESS applications include balancing grid supply and demand, improving grid quality and reliability, shaving peak electricity demand, price arbitrage, deferring electricity infrastructure investments, providing emergency back-ups during grid outages, and allowing for more efficient load management. [67]

Many states around the nation have recognized these benefits, as well as the fundamental role battery storage can play in ensuring their climate and energy goals are met. Thirteen states have passed legislation establishing a battery storage mandate, target, and/or goal. [68] Some are specifically for state operations and publicly-owned utilities, while others go further by placing mandates on investor-owned utilities. [69] Progress towards these targets is varied, with states such as California and Nevada greatly exceeding their goals, while others like Connecticut, Illinois, and Virginia have only just begun. [70] Fewer states have launched demonstration programs, in which public funding is allocated for private research and development programs to allow for states to “study the benefits and logistics of energy storage deployment on an incremental basis.” [71] Others have established incentive programs – usually in the form of tax credits – that encourage the development of BESSs. [72] At the federal level, the Inflation Reduction Act (“IRA”) included provisions that make battery storage projects – both utility-scale and small-scale – eligible for the Investment Tax Credit, which can cover up to 30% of the total project cost. [73] Though many IRA tax incentives for solar, wind, and other clean energy technologies were reversed or restricted in 2025, the One Big Beautiful Bill Act (“OBBBA”) preserved credits for American battery storage projects. [74]

C) BESS Safety Concerns

Despite these efforts to mandate and/or promote the development of battery storage, there have been several concerns raised, particularly over the safety of BESSs. As with other types of technology in the energy space, there are legitimate risks associated with battery storage. The overcharging or mismanagement of lithium-ion batteries can lead to thermal runaway, in which the battery malfunctions and starts to overheat uncontrollably. [75] Thermal runaway can, in turn, lead to the venting of flammable gases (such as hydrogen gas and carbon monoxide) and the ejection of electrical sparks from internal components of the malfunctioning battery. [76] Not only does the release of toxic gases present a serious health risk for those working at BESSs, but the ignition of such gases could result in fires and/or explosions that threaten the areas surrounding battery storage facilities. [77] Over the past 10 years, there have been approximately 100 BESS fires around the world, with the most being reported in South Korea, the United States, and China, respectively. [78]

The first major utility-scale BESS fire in the United States took place in 2012 at the First Wind site in Kahuku, HI. [79] The 30 MW project ignited due to “manufacturing defects,” and burned so intensely that firefighters could not enter the facility for 7 hours. [80] After $30 million in costs, a year-and-a-half of delays, and several lawsuits, the developer decided against reviving battery storage for the project. [81] Since the Kahuku fire, BESS incidents have taken place in multiple states across the country, at facilities of various sizes. [82] In early 2025, a fire ignited at the world’s largest BESS in Moss Landing, CA. [83] The energy company that operated the facility said that most of its 100,000 lithium-ion battery modules had burned, prompting closures at local schools and the evacuation of 1,000 residents. [84] Though the fire was eventually contained by local authorities and no homes were damaged, members of the community – many of whom work in agriculture – expressed concern over adverse environmental and health impacts. [85] While subsequent air and water testing didn’t raise any alarms, separate studies by the California Department of Toxic Substances and researchers at San Jose State University detected elevated levels of heavy metals (cobalt, nickel, copper, and manganese) in soil samples. [86] These findings – along with community health testimonials – are now being used as the basis for litigation against the energy company, public utility, and other entities. [87] 

Though fires at BESSs attract lots of community attention and media coverage, the overall battery storage failure incident rate has dropped significantly (97%) over the past few years. [88] While some first responders have unfortunately been injured fighting BESS fires, none have lost their lives, and, so far, there have been no reports of fires at utility-scale facilities spreading to adjacent properties. [89] Environmental impacts from BESS fires may also not be as serious as originally thought. Past tests – including at a previous Moss Landing incident and a recent fire in Warwick, NY – have found that concentrations of hazardous substances (such as hydrogen fluoride, hydrogen cyanide, and other heavy metals) were well below both detection and safety limits. [90]

Nevertheless, state regulators have taken note of community concerns and codified stronger standards for battery storage facilities. [91] These are often developed by organizations like the International Code Council (“ICC”), National Fire Prevention Association (“NFPA”), and the International Fire Code (“IFC”), all of which have updated their standards for BESSs in recent years. [92] The 2023 revision of NFPA 855, for example, requires developers to submit details on “firewalls, fire suppression, smoke or fire detection, gas detection, thermal management, ventilation, exhaust, and deflagration venting systems,” to authorities having jurisdiction (“AHJs,” usually local land use commissions and municipal boards). [93] Facilities must also provide fire and explosion testing data to AHJs, and install devices that manage the flow of charge into the batteries. [94] Many of these revised standards incorporate solutions that have been identified by scientists and engineers, such as the use of fire-suppressant liquids and spatial design modifications. [95] 

 

PART II: LOCAL OPPOSITION TO BATTERY STORAGE

Despite state and industry efforts to make battery storage safer, many stakeholders, especially those at the local level, remain vocal in their opposition to BESS facilities. Staten Island Borough President Vito Fossella lambasted the New York City Council for updating its zoning code to allow for BESS siting in residential areas, arguing that they were “quite literally playing with fire.” [96] In Queens, New York City Councilman Robert Holden planned to hold a rally against a proposed battery storage facility that would make his district “a testing ground for dangerous energy experiments.” [97] On Long Island, three Town Supervisors came together last year to oppose the RAPID (“Renewable Action Through Project Interconnection and Deployment”) Act, a piece of state legislation that would consolidate environmental reviews and permitting for large-scale renewable energy projects, including BESSs. [98] State preemption of local land use laws to streamline the development of battery storage projects is a “matter of public safety… [that] should not be rushed,” nor forced on communities without proper research, according to the Supervisors. [99] In the Hudson Valley region, local elected officials retained outside counsel to challenge BESS approvals in neighboring municipalities, arguing that “the fight has really just begun.” [100]

A) BESS Development Moratoria

Some municipalities have gone farther than simply making comments in opposition to battery storage, by passing moratoria prohibiting the development of BESS facilities within their jurisdiction. [101] A moratorium is “a local enactment which temporarily suspends a landowner’s right to obtain development approvals while the community considers and potentially adopts changes to its comprehensive plan and/or its land use regulations to address new circumstances not addressed by its current laws.” [102] Development moratoria are also considered “stopgap” or “interim” zoning measures, since they preserve a municipality’s status quo while it considers zoning code updates. [103] 

New York is the nationwide leader for local BESS moratoria. [104] As of March 2026, there have been 112 BESS moratoria passed (and 98 currently active) in New York State alone – more than the next 15 states combined. [105] Many of these moratoria have been imposed due to concerns over fire safety, noise and visual impacts, the novelty battery storage technology, property value impacts, conflicts with other land uses, and environmental impacts. [106] Though they are designed to be temporary measures, especially aggressive moratoria can lead to permanent cancellations of BESS development plans. [107]

In Suffolk County, 7 of the 10 Towns have passed BESS moratoria (or BESS moratoria extensions) over the past few years, all of which were approved by the Suffolk County Planning Commission (“SCPC”), pursuant to state law. [108] The Town of Southold was the first to propose a moratorium on battery storage facilities, recognizing that such “facilities are a key component to the viability and promotion of renewable energy sources, however, the technology of these systems is still in its infancy.” [109] To give itself adequate time to study the safety of BESS facilities and to update their zoning codes, the Town of Southold proposed a 12-month development moratorium. [110] The SCPC approved the moratorium on April 4, 2023, but encouraged the Town to consider a shorter length and to review BESS regulations adopted by other local governments in the area, such as the Towns of Brookhaven, Huntington, Islip, and Southampton. [111] Southold’s BESS moratorium was extended two subsequent times and will remain active until at least April 22, 2026, though a third 12-month extension is currently being proposed by the Town Board. [112; Author's Note: The Town of Southold did, in fact, approve a third extension to April 2027.]

The Town of Southampton was the second Town to approve a BESS moratorium, and the first to do so following a battery storage fire in neighboring East Hampton. [113] Though it had already codified BESS regulations in 2021, the Town sought a 6-month moratorium to review new standards and consider code updates. [114] The SCPC approved the moratorium on August 2, 2023, but again make several recommendations to the Town, including that it take action on a pending application for the Canal Southampton Battery Storage, LLC project. [115] The Canal Southampton project faced strong community backlash, and, to date, the Town of Southampton has not taken any action. [116] Southampton’s BESS moratorium was extended three subsequent times and expired on May 27, 2025. [117] Shortly thereafter, the Town adopted 6 new BESS laws that were approved by the SCPC, which acknowledged “the significant effort and commitment of the Town of Southampton to address the need and concerns regarding the storage of renewable energy in their community.” [118]

BESS moratoria were additionally proposed and approved in the Towns of Huntington, Riverhead, Islip, Babylon, and Smithtown. [119] All but Riverhead have subsequently approved extensions (with Islip and Babylon each approving three extensions), and BESS moratoria are still active in the Towns of Babylon, Islip, and Smithtown, as of March 2026. [120] These Towns have made varying levels of progress on updating their BESS codes – from Islip struggling to retain a consultant, to Riverhead abandoning its moratorium and meeting with developers. [121]

B) Legality of BESS Moratoria

Though New York State has no specific statutory guidance on development moratoria, local governments are granted broad police power to “take action to advance the public health, safety and welfare.” [122] They are empowered to adopt zoning regulations relating to “the protection and enhancement of [their] physical and visual environment,” and the “protection, order, conduct, safety, health and well-being of persons or property therein.” [123] Of course, there are limits to this authority. The New York State Court of Appeals has held that, when it exercises this police power in a way that interferes with “the beneficial enjoyment of property,” a municipality must show “that it has acted in response to a dire necessity, that its action is reasonably calculated to alleviate or prevent the crisis condition, and that it is presently taking steps to rectify the problem.” [124]

In 2023, when BESS moratoria were first being considered by local governments around the country, there was plausibly a “dire necessity;” battery storage fires were becoming more common, were being publicized more often, and were being regulated less thoroughly. [125] But it is no longer 2023. Battery storage technology has improved, and more comprehensive safety standards have been developed. [126] In New York, the IAFSWG released their final list of BESS safety recommendations in July 2024. [127] Since then, these have officially been incorporated into the FCNYS, which municipalities across New York are free – and have been encouraged by advisory entities such as the SCPC ­– to incorporate into their zoning codes and regulations. [128] With the progress that has been made over the past year on BESS safety, it is questionable whether battery storage moratoria would still be considered “dire [necessities].” [129]

Moratoria must also be enacted for reasonable time frames. Courts around New York have held that moratoria can be invalidated due to a Town’s “unreasonable delay in enacting a zoning ordinance.” [130] Generally speaking, 5 years has been determined to be an “unreasonable” length for a moratorium, even if a Town has made some progress towards a resolution. [131] Even if a moratorium is originally approved for a “reasonable” time frame, frequent extensions could nonetheless raise eyebrows. In 1991, the Supreme Court, Suffolk County, found the Town of Huntington’s moratorium on dock construction to be “excessive and unconstitutionally void,” because it placed a “limitation on plaintiff's right to use his property… for a period extending over three years.” [132] BESS moratoria are typically enacted for periods of between 3 to 12 months, though many of the aforementioned moratoria have been extended several times. [133] While most of the Towns have made meaningful progress (e.g. holding public hearings, consulting with experts, collaborating with other governments), repetitive extensions of BESS moratoria without concrete zoning code updates may considered “unreasonable delay[s].” [134]

Furthermore, moratoria must only be enacted for valid public purposes. Case law has held that the goal of moratoria is “to protect the public interest and welfare until an ordinance is finally adopted.” [135] In 1995, the Supreme Court, Appellate Division, Second Department, found a local moratorium on installation of cellular antennas null and void because it relied “upon the speculative and unfounded ‘perception’ of health risks by some Village residents,” rather than actual scientific data. [136] Though there have been some legitimate health, safety, and environmental concerns regarding the siting of BESS facilities, media coverage of fire incidents has resulted in outsized public backlash. [137] With recent technology and safety standard advancements, these concerns are now likely unfounded. If municipalities were to proceed with additional extensions, they would likely not be based on scientific data, but rather community fear, which is not a legitimate basis for approving moratoria. [138]

With a wealth of case law on the subject of development moratoria, energy developers and project proponents likely have several legal claims they could assert against local BESS moratoria. Battery storage safety is no longer an emergency of “dire necessity,” thanks to technology upgrades and the development of stronger safety standards. [139] The time frames of certain moratoria (Southold’s current proposal would bring its moratorium to 4 years) could be considered excessive, especially in light of New York’s impending CLCPA mandates. [140] And it is questionable whether these moratoria are in the public’s interest, given that legitimate concerns over BESS fire safety have been addressed with recent IAFSWG recommendations, NYSERDA guidance, and FCNYS updates. [141]

Before project developers can challenge these moratoria, they will likely need to exhaust administrative remedies. Many of the BESS moratoria passed at the local level include provisions allowing for variances, exemptions, and/or exclusions. [142] If a variance is not granted by the Town, and if the developer believes that a moratorium violates any of the aforementioned precedents, they can then initiate an Article 78 proceeding to challenge the denial and the moratorium. [143] It would be in this forum that developers could bring other claims, including Takings Clause claims under the United States and New York Constitutions. [144]

CONCLUSION

Battery storage is a crucial component of the transition to renewable energy, and BESSs have the power (no pun intended) to bring New York closer to its CLCPA mandates. [145] Though there have been legitimate concerns raised over their safety and flammability, standards have been updated to drastically reduce the risk posed to neighboring communities. [146] Nevertheless, vocal opposition from some stakeholders and local development moratoria prevent the widespread growth of battery storage systems. [147] 

It’s time for this waiting game to end. Battery energy storage systems can be constructed and operated in a manner that prioritizes community safety, environmental protection, and energy reliability simultaneously. Decades of case law have shaped the contours of acceptable moratoria: those that are approved in response to “dire necessity,” enacted for “reasonable” time frames, and within the “public interest.” [148] By challenging unreasonable moratoria, developers can ensure our State can get back on track to meet our climate and clean energy goals, as well as our projected energy needs. This could also be an opportunity for battery storage representatives to assuage public concerns, raise public awareness about BESS safety, and build strong relationships with the communities they seek to serve. Because, after all, a clean, reliable, and affordable electricity grid benefits us all.

    

[1] Case 23-E-0142, Holtsville Energy Storage, LLC, Comment 148 (Feb. 26, 2024), https://documents.dps.ny.gov/public/MatterManagement/CaseMaster.aspx?MatterCaseNo=23-E-0142. 

 

[2] Case 23-E-0142, Holtsville Energy Storage, LLC, Comment 141 (Nov. 23, 2023), https://documents.dps.ny.gov/public/MatterManagement/CaseMaster.aspx?MatterCaseNo=23-E-0142. 

 

[3] Case 23-E-0142, Holtsville Energy Storage, LLC, Comment 43 (June. 28, 2023), https://documents.dps.ny.gov/public/MatterManagement/CaseMaster.aspx?MatterCaseNo=23-E-0142.

 

[4] Case 23-E-0142, Holtsville Energy Storage, LLC, Order Granting Certificate of Public Convenience and Necessity and Providing for Lightened Regulation 17–19 (Oct. 12, 2023).

 

[5] Id. at 18–19.

 

[6] Id.

 

[7] Id. at 16.

 

[8] Zack Fink, Cuomo Signs Historic Climate Change Legislation, Spectrum News NY1 (Jul. 18, 2019), https://ny1.com/nyc/all-boroughs/news/2019/07/18/cuomo-signs-historic-climate-change-legislation. 

 

[9] N.Y. Env’t Conserv. Law § 75-0107 (McKinney); Though specific amendments haven’t been proposed or voted on yet, Governor Hochul has indicated that she will seek to change some of the CLCPA’s deadlines. SeeLuke Parsnow, Hochul says she'll announce proposed changes to 2019 climate law this week, Spectrum News NY1(Mar. 16, 2026), https://ny1.com/nyc/all-boroughs/politics/2026/03/16/hochul-to-announce-proposed-changes-to-climate-law-this-week. 

 

[10] N.Y. Env’t Conserv. Law § 75-0103.

 

[11] Case 18-E-0130, Energy Storage Deployment Program, Order Establishing Updated Energy Storage Goal and Deployment Policy 10–11 (Jun. 20, 2024).

 

[12] Statewide Energy Storage Projects, NYSERDA, https://www.nyserda.ny.gov/All-Programs/Energy-Storage-Program/Storage-Data-Maps/Statewide-Energy-Storage-Projects (last visited Mar. 17, 2026).

 

[13] Julian Spector, New York is reeling from its hot battery summer, Canary Media (Aug. 21, 2023), https://www.canarymedia.com/articles/batteries/new-york-is-reeling-from-its-hot-battery-summer. 

 

[14] Initial Findings Released From Inter-Agency Fire Safety Working Group On Emergency Response, NYSERDA (Dec. 21, 2023), https://www.nyserda.ny.gov/About/Newsroom/2023-Announcements/2023-12-21-Governor-Hochul-Announces-Results-of-Fire-Safety-Working-Group.

 

[15] Ari Brown, Battery energy storage systems are a growing threat, Long Island Herald (Mar. 28, 2025), https://www.liherald.com/elmont/stories/battery-energy-storage-systems-are-a-growing-threat,213944?fbclid=IwY2xjawJgNWdleHRuA2FlbQIxMQABHpxnPENM5cGEcc0Z2Izf0EvorfY3Z0MtGH4FX29YPgtf1IPpR9JP72Yh-WHh_aem_xVDZVplJriRFMuc2k_HlwQ (Mr. Brown is a member of the New York State Assembly); Sarah Anker, Letter: Sharing Concerns About Battery Energy Storage, East End Beacon (May 24, 2024), https://www.eastendbeacon.com/letter-sharing-concerns-about-battery-energy-storage/ (at the time of publication, Ms. Anker was a former Suffolk County Legislator and candidate for State Senate); Mark Walczyk, Walczyk Calls For A Freeze of Fire-Prone Battery Storage Facilities, New York State Senate (Jul. 28, 2023), https://www.nysenate.gov/newsroom/press-releases/2023/mark-walczyk/walczyk-calls-freeze-fire-prone-battery-storage; Editorial Board, Riverhead should halt review of battery energy storage applications until state concludes probe of recent fires, Riverhead Loc. (Aug. 7, 2023); https://riverheadlocal.com/2023/08/07/riverhead-should-halt-review-of-battery-energy-storage-applications-until-state-concludes-probe-of-recent-fires/. 

 

[16] Dawn Baker & Christine Panos, New York can do better than battery storage for our energy needs. This is why, Lohud (Jul. 10, 2024), https://www.lohud.com/story/opinion/2024/07/10/ny-battery-storage-there-are-better-ways-to-manage-our-energy-needs/74326974007/ (“New York’s claim that no pollution was emitted from the three BESS fires in 2023 is preposterous. This is tantamount to Christie Todd Whitman claiming the air was safe to breathe in downtown Manhattan after 9/11.”).

 

[17] Matthew Zeitlin, Batteries Are the Least Popular Part of a Carbon-Free Grid, Heatmap (May 10, 2024), https://heatmap.news/climate/battery-support-survey#. 

 

[18] N.Y. State Interagency Fire Safety Working Grp., Fire Code Recommendations 2 (2024), https://www.nyserda.ny.gov/All-Programs/Energy-Storage-Program/New-York-Inter-Agency-Fire-Safety-Working-Group. 

 

[19] Id. at 3.

 

[20] Id. at 5–21.

 

[21] N.Y. Dep’t of State & Int’l Code Council, 2025 Fire Code of New York State (2025), https://dos.ny.gov/system/files/documents/2025/07/2025fcnys_noa_2025-07-24.pdf) (codified at 19 N.Y.C.R.R. pt. 1225).

 

[22] New York State Battery Energy Storage System Guidebook, NYSERDA, https://www.nyserda.ny.gov/All-Programs/Clean-Energy-Siting-Resources/Battery-Energy-Storage-Guidebook (last visited Mar. 17, 2026).

 

[23] See infra, Part II(A).

 

[24] See infra, Part II(B).

 

[25] See infra, Part I.

 

[26] See infra, Part I(A).

 

[27] See infra, Part I(B).

 

[28] See infra, Part I(C).

 

[29] Id.

 

[30] See infra, Part II.

 

[31] See infra, Part II(A).

 

[32] See infra, Part II(B).

 

[33] Id.

 

[34] Paris Agreement – Status of Ratification, United Nations Framework Convention on Climate Change, https://unfccc.int/process/the-paris-agreement/status-of-ratification (last visited Mar. 17, 2026); Key Aspects of the Paris Agreement, United Nations Framework Convention on Climate Change, https://unfccc.int/most-requested/key-aspects-of-the-paris-agreement (last visited Mar. 17, 2026).

 

[35] United Nations Environmental Programme, Emissions Gap Report 2024 – No More Hot Air… Please! (Executive Summary) VII (2024), https://wedocs.unep.org/bitstream/handle/20.500.11822/46443/EGR2024_ESEN.pdf?sequence=16. 

 

[36] Dana Drugmand, One Year After Trump’s Inauguration, the Damage to Environmental Policy Is Unprecedented, Sierra (Jan. 20, 2026), https://www.sierraclub.org/sierra/one-year-after-trump-s-inauguration-damage-environmental-policy-unprecedented; Tracy J. Wholf, 45 states are now covered by a climate action plan, CBS News (Mar. 12, 2024), https://www.cbsnews.com/news/climate-action-plan-states-emissions/; See also State Climate Policy Maps, Ctr. for Climate and Energy Solutions, https://www.c2es.org/content/state-climate-policy/ (last visited Mar. 17, 2026); All Cities with Climate Action Plans, Zero Energy Project, https://zeroenergyproject.com/all-cities-with-climate-action-plans/ (last visited Mar. 17, 2026).

 

[37] See generally U.S. Climate All., https://usclimatealliance.org/ (last visited Mar. 17, 2026); Am. Is All In, https://www.americaisallin.com/ (last visited Mar. 17, 2026); C40 Cities, https://www.c40.org/ (last visited Mar. 17, 2026); Climate Mayors, https://www.climatemayors.org/ (last visited Mar. 17, 2026).

 

[38] L. Beril Toktay et al., Companies are still committing to net-zero emissions, even if it’s a bumpy road – here’s what the data show, The Conversation (Nov. 20, 2024), https://theconversation.com/companies-are-still-committing-to-net-zero-emissions-even-if-its-a-bumpy-road-heres-what-the-data-show-239487; See generally The Climate Pledge, https://www.theclimatepledge.com/ (last visited Mar. 17, 2026); Join the Race to Zero, The Climate Group, https://www.theclimategroup.org/join-race-to-zero (last visited Mar. 17, 2026); Climate Action 100+, https://www.climateaction100.org/ (last visited Mar. 17, 2026).

 

[39] See Dolf Gielen et al., The role of renewable energy in the global energy transformation, 24 Energy Strategy Reviews 38 (2019) (discussing the synergies between energy efficiency and renewable energy in meeting emissions reduction goals).

 

[40] Id.

 

[41] Emmanuel Ejuh Che et al., The Impact of Integrating Variable Renewable Energy Sources into Grid-Connected Power Systems: Challenges, Mitigation Strategies, and Prospects, 18 Energies 689, 689–690 (2025).

 

[42] Id. at 703–706.

 

[43] Id.

 

[44] Id.

 

[45] Id.

 

[46] Climate Cent., A Decade of Growth in Solar and Wind Power: Trends Across the U.S., 6 (2024), https://www.climatecentral.org/report/solar-and-wind-power-2024. 

 

[47] Id. at 10.

 

[48] Id. at 8 (discussing the impact of daily and seasonal weather variations on solar and wind generation).

 

[49] Gavin Maguire, Germany’s weak winds trigger record surge in gas-fired power, Reuters (Dec. 4, 2024), https://www.reuters.com/business/energy/germanys-weak-winds-trigger-record-surge-gas-fired-power-maguire-2024-12-04/. 

 

[50] Id.; (“Dunkelflaute” roughly translates to “dark wind lull” in English.).

 

[51] Oliver Milman, A nuclear plant’s closure was hailed as a green win. Then emissions went up, The Guardian (Mar. 20, 2024), https://www.theguardian.com/environment/2024/mar/20/nuclear-plant-closure-carbon-emissions-new-york. 

 

[52] Id.

 

[53] As solar capacity grows, duck curves are getting deeper in California, U.S. Energy Info. Admin. (Jun. 21, 2023), https://www.eia.gov/todayinenergy/detail.php?id=56880. 

 

[54] Id.

 

[55] Id. (The reason for curtailment may not always be purely related to grid management. If too much solar energy is added to the grid at once, the price of energy may plummet, which could have adverse impacts on the economic vitality of conventional sources.).

 

[56] Will more wind and solar PV capacity lead to more generation curtailment?, Int’l Energy Agency (Jun. 2023), https://www.iea.org/reports/renewable-energy-market-update-june-2023/will-more-wind-and-solar-pv-capacity-lead-to-more-generation-curtailment; See also Int’l Energy Agency, Renewables 2024: Analysis and Forecast to 2030 114–117 (2024), https://iea.blob.core.windows.net/assets/17033b62-07a5-4144-8dd0-651cdb6caa24/Renewables2024.pdf. 

 

[57] M. Stanley Whittingham, History, Evolution, and Future Status of Energy Storage, 100 Proceedings of the IEEE 1518, 1520 (2012).

 

[58] Id. at 1520–1521.

 

[59] Id. at 1521.

 

[60] Id.

 

[61] Id. at 1518.

 

[62] Electricity explained: Energy storage for electricity generation, U.S. Energy Info. Admin. (Aug. 28, 2023), https://www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php. 

 

[63] Id.

 

[64] Id.

 

[65] New U.S. electric generating capacity expected to reach a record high in 2026, U.S. Energy Info. Admin. (Feb. 20, 2026), https://www.eia.gov/todayinenergy/detail.php?id=67205. 

 

[66] U.S. Energy Info. Admin., supra note 53.

 

[67] U.S. Energy Info. Admin., supra note 62.

 

[68] Todd Olinsky-Paul et al., Table of State Energy Storage Targets, Progress, and Comments, Clean Energy States All. (Jan. 8, 2026), https://www.cesa.org/resource-library/resource/table-of-state-energy-storage-targets-progress-and-comments/; A.B. 2514, 2009-2010 Leg., Reg. Sess. (Cal. 2010); S.B. 952, 2021 Gen. Assemb., Reg. Sess. (Conn. 2021) (“An Act Concerning Energy Storage”); S.B. 25, 110th Gen. Assemb., Reg. Sess. (Ill. 2025) (“Clean and Reliable Grid Affordability Act”); L.D. 528, 130th Leg., 1st Spec. Sess. (Me. 2021) (“An Act to Advance Energy Storage in Maine”); H.B. 910, 2023 Leg., Reg. Sess. (Md. 2023) (“Energy Storage - Targets and Maryland Energy Storage Program - Establishment”); H. 4897, 190th Gen. Ct., Reg. Sess. (Mass. 2018) (“An Act to Advance Clean Energy”); S.B. 271, 102nd Leg., Reg. Sess. (Mich. 2023); S.B. 204, 79th Leg., Reg. Sess. (Nev. 2017); A. 2723, 218th Leg., Reg. Sess. (N.J. 2018) (“An Act Concerning Clean Energy”); S.B. 6599, 2019-2020 Leg., Reg. Sess. (N.Y. 2019) (“Relates to the New York State Climate Leadership and Community Protection Act”); H.B. 2193, 2015 Leg., Reg. Sess. (Or. 2015) (“Relating to Energy Storage”); S. 2499, 2024 Leg., Reg. Sess. (R.I. 2024) (“Energy Storage Systems Act”); H. 1526, 2020 Leg., Reg. Sess. (Va. 2020).

 

[69] Clean Energy States All., supra note 68.

 

[70] Id.

 

[71] Mark A. Lazaroff & Maggie E. Curran, State by State: A Roadmap Through the Current US Energy Storage Policy Landscape, Morgan Lewis (Mar. 4, 2024), https://www.morganlewis.com/pubs/2024/03/state-by-state-a-roadmap-through-the-current-us-energy-storage-policy-landscape#_ftn25. 

 

[72] Id.; See also Energy Storage Policy Database, Pacific Nw. Nat’l Lab’y (May 2022), https://energystorage.pnnl.gov/regulatoryactivities.asp. 

 

[73] Summary of Inflation Reduction Act provisions related to renewable energy, Env’t Prot. Agency (Jan. 28, 2025), https://www.epa.gov/green-power-markets/summary-inflation-reduction-act-provisions-related-renewable-energy#ITCPTC. 

 

[74] Michael C. Anderson, Senate GOP Plan Preserves Battery Storage Credits, Phases Out Other Clean Energy Incentives, Battery Tech. (Jun. 17, 2025), https://www.batterytechonline.com/industry-outlook/senate-gop-plan-preserves-battery-storage-credits-phases-out-other-clean-energy-incentives. 

 

[75] Yan Wang et al., Advances in safety of lithium-ion batteries for energy storage: Hazard characteristics and active suppression techniques, 4 Energy Reviews 1 (2024).

 

[76] Id. at 1–2.

 

[77] Id. 

 

[78] Id. at 2; See also BESS Failure Incident Database, Elec. Power Rsch. Inst., https://storagewiki.epri.com/index.php/BESS_Failure_Incident_Database (last visited Mar. 17, 2026). 

 

[79] Ros Davidson, Analysis: First Wind project avoids storage after $30m fire, Wind Power Monthly (Mar. 6, 2014), https://www.windpowermonthly.com/article/1284038/analysis-first-wind-project-avoids-storage-30m-fire. 

 

[80] Id.

 

[81] Id.

 

[82] Elec. Power Rsch. Inst., supra note 78; Peter Judge, 4MW of AES' lithium batteries burn in Chandler, Arizona, Data Ctr. Dynamics (Apr. 28, 2022), https://www.datacenterdynamics.com/en/news/4mw-of-aes-lithium-batteries-burn-in-chandler-arizona/; Update: Battery fire still burning at Idaho Power substation in Melba, KBTV News (Oct. 3, 2023), https://www.ktvb.com/article/news/local/local-battery-fire-at-idaho-power-substation-in-melba/277-86b31e65-5c9f-468b-9cd8-cd5502847ac7; Battery fire Near LaSalle County Nuclear Power Plant Contained, WSPY News (Jul. 21, 2021), https://www.wspynews.com/news/local/battery-fire-near-lasalle-county-nuclear-power-plant-contained/article_7280c292-e94f-11eb-bd8a-93d37d0a5771.html (Illinois); Marcie Cipriani, Firefighters battle flames at Millvale Food & Energy Hub, WTAE News (Jan. 30, 2023), https://www.wtae.com/article/millvale-fire-sprezzatura-food-energy-hub/42708022 (Pennsylvania); Julian Spector, supra note 13 (New York).

 

[83] Orlando Mayorquin, A California Battery Plant Burned. Residents Have Gotten Sick, and Anxious., New York Times (Feb. 10, 2025), https://www.nytimes.com/2025/02/10/us/california-battery-plant-fire.html. 

 

[84] Id. 

 

[85] Id. 

 

[86] Id.

 

[87] Community Members and Erin Brockovich Join Forces to File Lawsuit over Moss Landing Energy Storage Facility Fire, Singleton Schreiber (Feb. 6, 2025), https://www.singletonschreiber.com/newsroom/pressreleases/community-members-and-erin-brockovich-join-forces-to-file-lawsuit-over-moss-landing-energy-storage-facility-fire. 

 

[88] Andy Colthorpe, Battery storage failure incident rate dropped 97% between 2018 and 2023, Energy Storage News (May 16, 2024), https://www.energy-storage.news/battery-storage-failure-incident-rate-dropped-97-between-2018-and-2023/. 

 

[89] Mark B. McKinnon et al., Four Firefighters Injured In Lithium-Ion Battery Energy Storage System Explosion – Arizona (UL Firefighter Safety Research Institute, 2020), https://d1gi3fvbl0xj2a.cloudfront.net/public/2021-07/Four_Firefighters_Injured_In_Lithium_Ion_Battery_ESS_Explosion_Arizona_0.pdf; Am. Clean Power Ass’n, Energy Storage Leading on Safety (2023), https://cleanpower.org/wp-content/uploads/gateway/2023/12/ACP_Energy-Storage-Leading-on-Safety_FactSheet.pdf. 

 

[90] Sara Rubin, Air quality testing showed no hazards to human health amid battery fire in Moss Landing., Monterey Cnty. Now (Sep. 30, 2022), https://www.montereycountynow.com/blogs/news_blog/air-quality-testing-showed-no-hazards-to-human-health-amid-battery-fire-in-moss-landing/article_5a0ee07a-4125-11ed-a797-c31048cab7a5.html; Blaise Gomez and Jeremy Hopwood, Hydrogen cyanide detected in air samples after Warwick lithium-ion battery fire, News12 Westchester (Dec. 31, 2025), https://westchester.news12.com/hydrogen-cyanide-detected-in-air-samples-after-warwick-lithium-ion-battery-fire; Am. Clean Power Ass’n, supra note 89.

 

[91] N.Y. Dep’t of State & Int’l Code Council, supra note 21; Resolution ESRB-13 – Adopts General Order (GO) 167-C, Enforcement of Maintenance and Operation Standards for Electric Generating Facilities and Energy Storage Systems, Cal. Pub. Utilities Comm’n (Mar. 13, 2025), https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M558/K715/558715484.pdf. 

 

[92] Julian Spector, Why we don’t need to worry too much about the latest grid battery fire, Canary Media (Jan. 27, 2025), https://www.canarymedia.com/articles/energy-storage/moss-landing-fire-reveals-flaws-in-the-battery-industrys-early-designs (discussing how California follows IFC standards, though the current standard was implemented after the Moss Landing BESS had already been constructed).

 

[93] Am. Clean Power Ass’n, U.S. Codes and Standards for Battery Energy Storage Systems 4 (2023), https://cleanpower.org/wp-content/uploads/gateway/2023/07/ACP-ES-Product-6-ESS-Codes-and-Standards-Overview-6.28.23.pdf; See also Energy Storage Systems (ESS) and Solar Safety, Nat’l Fire Prevention Ass’n, https://www.nfpa.org/education-and-research/electrical/energy-storage-systems (last visited Mar. 18, 2026).

 

[94] Am. Clean Power Ass’n, supra note 93.

 

[95] Wang et al., supra note 75, at 19.

 

[96] Vito Fossella, Siting large lithium-ion batteries near homes and gas stations is literally playing with fire, New York Post (Aug. 2, 2024), https://nypost.com/2024/08/02/opinion/siting-large-lithium-ion-batteries-near-homes-and-gas-stations-is-literally-playing-with-fire/. 

 

[97] Colum Motherway, Council Member Holden slams plans to build lithium-ion battery storage facility across from Middle Village school, QNS (Mar. 28, 2025), https://qns.com/2025/03/holden-battery-storage-facility-middle-village/. 

 

[98] Townships Denounce NYS RAPID Act – Albany’s Plan to Fast-Track Dangerous Energy Storage Facilities, Town of Hempstead (Apr. 2, 2025), https://hempsteadny.gov/CivicAlerts.aspx?AID=258. 

 

[99] Id.

 

[100] Rick Pezzullo, Somers Hires Legal Counsel in Battery Energy Storage Fight, The Exam’r News (Jun. 17, 2024), https://www.theexaminernews.com/somers-hires-legal-counsel-in-battery-energy-storage-fight/. 

 

[101] Devyn W. Powell et al., Tracking Local Moratoria and Other Key Considerations for Battery Energy Storage Siting, Pacific Nw. Nat’l Lab’y (Aug. 5, 2024), https://www.sandia.gov/app/uploads/sites/82/2024/08/PR2024_404_Powell_Devyn_Policy.pdf. 

 

[102] N.Y. Dep’t of State, Land Use Moratoria 1 (2010), https://dos.ny.gov/system/files/documents/2024/09/land-use-moratoria.pdf. 

 

[103] Id. at 2.

 

[104] April Bonner, New York leads US in BESS moratoriums, recent data shows, Energy Storage News (Mar. 13, 2026), https://www.energy-storage.news/new-york-leads-us-in-bess-moratoriums-recent-data-shows/. 

 

[105] New York BESS Moratoriums, Carina Energy (Mar. 1, 2026), https://carina.energy/bess-moratoriums/new-york/. 

 

[106] Devyn W. Powell et al., supra note 101, at 6.

 

[107] Matthew Bliss, East Point withdraws 116MW BESS project in Upstate New York after town bans utility-scale storage, Energy Storage News (Apr. 2, 2025), https://www.energy-storage.news/east-point-withdraws-116mw-bess-project-in-upstate-new-york-after-town-bans-utility-scale-storage/. 

 

[108] Carina Energy, supra note 105; N.Y. Gen. Mun. Law § 239-m (McKinney) (note that moratoria not approved by the Suffolk County Planning Commission can still be adopted if a supermajority of a municipality’s board votes in favor).

 

[109] Southold, N.Y., Local Law 2023-164 (2023); File No. SD-23-03, Staff Report – Moratorium – Amendment to the Southold Zoning Law, Suffolk Cnty. Plan. Comm’n 1 (Apr. 4, 2023), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2023/Z-4_Staff-Report-Moratorium-Town-Southold-LL-2023-164-BESS.pdf. 

 

[110] Id.

 

[111] Id. at 4–5, 7.

 

[112] File No. SD-25-02, Staff Report – Moratorium – Amendment to the Zoning Law - Southold, Suffolk Cnty. Plan. Comm’n(Apr. 2, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-4_Staff_Report_SD-25-02_Southold_BESS_Moratorium_Extension.pdf; Nicole Wagner, Southold to hold hearings on BESS moratorium extension, ADU code changes, The Suffolk Times (Mar. 18, 2026), https://suffolktimes.timesreview.com/2026/03/southold-to-hold-hearings-on-bess-moratorium-extension-adu-code-changes/. 

 

[113] Southampton, N.Y., Local Law 2023-857 (2023); Christopher Walsh, After Fire at Substation, New Battery Worries, East Hampton Star (Jul. 6, 2023), https://www.easthamptonstar.com/government/202376/after-fire-substation-new-battery-worries. 

 

[114] File No. SH-23-02, Staff Report – Moratorium – Amendment to the Southampton Zoning Law, Suffolk Cnty. Plan. Comm’n 1–2 (Aug. 2, 2023), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2023/Z-1_Staff-Report-Moratorium-BESS-Town-Southampton-7-23.pdf. 

 

[115] Id. at 8.

 

[116] Beth Young, As Battery Storage by the Canal Riles Up Hampton Bays, Southampton Town To Consider Including Project in Moratorium, East End Beacon (Jul. 12, 2023), https://www.eastendbeacon.com/as-battery-storage-by-the-canal-riles-up-hampton-bays-southampton-town-to-consider-including-project-in-moratorium/; Joe Werkmeister, Southampton Town to regulate large battery storage systems, restricting them from residential areas, Newsday (Feb. 18, 2025), https://www.newsday.com/long-island/towns/southampton-moratorium-battery-l5wcihry (noting that Southampton’s BESS moratorium “froze” the Canal Southampton application).

 

[117] File No. SH-25-03, Staff Report – Moratorium (Extension) – Amendment to the Southampton Zoning Law, Suffolk Cnty. Plan. Comm’n (Mar. 5, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-2_Staff_Report__-_SH-25-03_Southampton_BESS_Moratorium_Extension_2-25.pdf. 

 

[118] Town Adopts New BESS Code, Town of Southampton (Jun. 12, 2025), https://www.southamptontownny.gov/m/newsflash/home/detail/1779; Southampton, N.Y. Local Laws 2025-611, 2026-612, 2025-613, 2025-614, 2025-615, 2025-616, 2025-617, and 2025-618 (2025); File Nos. SH-25-04, 05, 06, 07, 08, 09, 10, and 11, Staff Report – Amendment to Zoning Code (6), Suffolk Cnty. Plan. Comm’n (Jun. 4, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-1_AMENDED_Staff_Report_-_SH-25-04_thru_11-_BESS_Code_Amendments.pdf. 

 

[119] Huntington, N.Y., Local Law 26-2023 (2023); File No. HU-23-06, Staff Report – Moratorium – Amendment to the Huntington Town Zoning Law, Suffolk Cnty. Plan. Comm’n (Sep. 7, 2023), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2023/Z-2_Staff-Report-Moratorium-BESS-Town-Huntington_8-23.pdf; Riverhead, N.Y., Local Law Resol.690 (2023); File No. RH-23-07, Staff Report – Moratorium – Amendment to the Riverhead Zoning Law, Suffolk Cnty. Plan. Comm’n (Nov. 1, 2023), https://www.suffolkcountyny.gov/Departments/Economic-Development-and-Planning/Planning-and-Environment/Regulatory-Review/Suffolk-County-Planning-Commission#reports; Islip, N.Y., Town Code § 68-457 (2024); File No. IS-24-01, Staff Report – Moratorium – Amendment to the Zoning Law - Islip, Suffolk Cnty. Plan. Comm’n (Mar. 6, 2024), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2024/Z-1%20-%20Staff-Report-Town%20of%20IslipMoratorium-BESS-rev5.pdf; Babylon, N.Y., Local Law 11(2024); File No. BA-24-03, Staff Report – Moratorium – Amendment to the Babylon Town Zoning Code, Suffolk Cnty. Plan. Comm’n (May 1, 2024); https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2024/Z-1_Staff_Report_BA_-_Moratorium_BESS_4-24.pdf; Smithtown, N.Y., Local Law 13-2024 (2024); File No. SM-24-XX, Staff Report – Moratorium – Amendment to the Smithtown Town Zoning Law, Suffolk Cnty. Plan. Comm’n (Sep. 5, 2024), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2024/Z-3_Staff_Report_-_SM-24-04_Moratorium-BESS.pdf. 

 

[120] File No. HU-24-01, Staff Report – Moratorium – Amendment to the Huntington Town Zoning Law, Suffolk Cnty. Plan. Comm’n (Apr. 3, 2024), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2024/Z-1_Staff_Report_-Town_of_Huntington_-_Moratorium_Extension_on_BESS.pdf; File No. BA-25-09, Staff Report – Moratorium – Amendment to the Babylon Town Zoning Law, Suffolk Cnty. Plan. Comm’n (Aug. 6, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-1StaffReportBabylonBESSMoratoriumExt.pdf; File No. SM-25-04, Staff Report – Moratorium – Amendment to the Smithtown Town Zoning Law, Suffolk Cnty. Plan. Comm’n (Jul. 2, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-1_Staff_Report_SM-25-04_Smithtown_BESS_Moratorium_Ext._6-25.pdf; File No. IS-25-03, Staff Report – Moratorium – Amendment to the Zoning Law - Islip, Suffolk Cnty. Plan. Comm’n (Sep. 3, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/Z-1_Staff_Report_Islip_BESS_.pdf.  

 

[121] Alek Lewis, Battery energy storage moratorium is no longer necessary, Hubbard says, Riverhead Loc. (Jan. 5, 2024), https://riverheadlocal.com/2024/01/05/battery-energy-storage-moratorium-is-no-longer-necessary-hubbard-says/; Matthew Biss, Nala Renewables project progresses as Town in Long Island, New York, drops BESS moratorium, Energy Storage News (May 2, 2025), https://www.energy-storage.news/nala-renewables-project-progresses-as-town-in-long-island-new-york-drops-bess-moratorium/; Summary of Regularly Scheduled Meeting, Suffolk Cnty. Plan. Comm’n 3 (Mar. 5, 2025), https://www.suffolkcountyny.gov/Portals/0/formsdocs/planning/scplanningcommission/2025/PC_Meeting_Summary_3-5-2025.pdf (“Nothing has been adopted yet. The Town had to retain a new consultant so that created some delays. Code changes take time, and public input is important, they want to make sure it’s done well and that’s why they need the extension.”).

 

[122] N.Y. Dep’t of State, supra note 102.

 

[123] N.Y. Town Law § 264 (McKinney); N.Y. Mun. Home Rule Law § 10(1)(ii)(a)(11–12) (McKinney).

 

[124] Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512 (1974).

 

[125] See discussion supra, Part I(C).

 

[126] Am. Clean Power Ass’n, supra note 89; Am. Clean Power Ass’n, supra note 93, at 4.

 

[127] N.Y. State Interagency Fire Safety Working Grp., supra note 18.

 

[128] N.Y. Dep’t of State & Int’l Code Council, supra note 21; See supra, notes 119 and 120 (in which many SCPC recommendations regarding local BESS moratoria include references to both the IAFSWG and FCNYS).

 

[129] Belle Harbor Realty Corp., 35 N.Y.2d at 512.

 

[130] Mitchell v. Kemp, 575 N.Y.S.2d 337, 338 (N.Y. App. Div. 2nd Dept., 1991).

 

[131] Mitchell v. Kemp, 575 N.Y.S.2d 337; Lakeview Apartments of Hunn. Lake v. Town of Stanford, 485 N.Y.S. 801 (N.Y. App. Div. 2nd Dept., 1985).

 

[132] Duke v. Town of Huntington, 581 N.Y.S.2d 978, 980 (N.Y. Sup. Ct., 10th District, 1991).

 

[133] See supra, notes 112, 117, 120.

 

[134] See supra, notes 116, 121.

 

[135] Lake Illyria Corp. v. Town of Gardiner, 352 N.Y.S.2d 54, 57 (N.Y. App. Div. 3rd Dept., 1974).

 

[136] Cellular Telephone Co. v. Village of Tarrytown, 624 N.Y.S.2d 170, 176 (N.Y. App. Div. 2nd Dept., 1995).

 

[137] See discussion supra, Part I(C).

 

[138] Cellular Telephone Co., 624 N.Y.S.2d at 176 (1995).

 

[139] Am. Clean Power Ass’n, supra note 89; Am. Clean Power Ass’n, supra note 93, at 4; N.Y. Dep’t of State & Int’l Code Council, supra note 21.

 

[140] N.Y. Env’t Conserv. Law §§ 75-0103, 75-0107 (McKinney).

 

[141] Interagency Fire Safety Working Group, supra note 18; NYSERDA, supra note 22; N.Y. Dep’t of State & Int’l Code Council, supra note 21.

 

[142] See supra, notes 109, 112, 114, 117, 119–120.

 

[143] N.Y. C.P.L.R. 78 (McKinney).

 

[144] U.S. Const. amend. V, § 9; N.Y. Const. art. I, § 7.

 

[145] See discussion supra, Introduction, Part I(B).

 

[146] See discussion supra, Part I(C).

 

[147] See discussion supra, Part II(A).

 

[148] See discussion supra, Part II(B).