Battery Energy Storage Systems

The need for and issues relating to the construction and operation of Battery Energy Storage Systems (BESS) has recently generated a lot of discussion in New York State and especially in Hudson Valley communities. In the simplest of terms, battery energy storage systems hold and then distribute different forms of energy, such as electrical energy, to be used at a later time. For instance, your cell phone battery is essentially a BESS, when charged, it stores energy that is distributed when you use your phone. This same concept can operate to store energy on a residential, commercial and utility scale. A residential BESS can store energy from your rooftop solar array, allowing that array to operate much more efficiently storing energy during the sunlight hours and distributing it during the evening or at times when the power grid may be out due to inclement weather. On the utility scale, the storage system can store energy from larger solar and/or wind facilities and from the grid during low demand overnight periods, when the cost is lower, to be distributed during high demand times when the cost is higher. This saves stress on the grid and consumers money. Battery energy storage systems have been identified by Governor Hochul and the New York legislature as being an important tool in achieving New York’s climate goals set out in the Climate Leadership and Community Protection Act (CLCPA). The wide-scale storage of renewable energy is crucial in facilitating two CLCPA goals: to have 70 percent of the State’s electricity come from renewable sources by 2030 and to have a 100 percent emissions-free grid by 2040. Additionally, in June 2024, the State set a new target to achieve six gigawatts of energy storage by 2030—the expansion of battery storage facilities will be needed to achieve this target.

Unfortunately, there have been some growing pains associated with the growth of BESS. On a smaller scale there have been a few building fires in NYC associated with the storage of electric bicycles. On a larger scale there were two fires in 2023 at BESS sites located in the Hudson Valley in Warwick, New York. While there was no significant damage that extended beyond the BESS sites, these fires did raise legitimate concerns regarding the safety of these facilities and the ability of local municipalities and fire companies to handle potential emergency situations.

In response to local concerns regarding the safety of BESS, especially fire hazards, Governor Hochul created a task force entitled the Inter-Agency Fire Safety Working Group in July 2023. The Working Group was tasked with information gathering and issued a final Fire Code Recommendations Report, which contains recommendations for the State Fire Code to address methods to reduce the risk of fire, to strengthen safety standards, and include practices to ensure emergency responders have the training and information needed in order to fight fires if they do occur. The final report can be found here New York’s Inter-Agency Fire Safety Working Group – NYSERDA.

NYSERDA (the New York State Energy and Research Development Authority, whose mission is to promote energy efficiency, renewable energy, and reduce emissions) has provided a model law for local governments to use to regulate the installation, operation, maintenance, and decommissioning of these battery systems, incorporating the measures recommended by the State task force. Provisions of the model law include the requirement of a fire safety compliance plan to ensure conformity with the State Uniform Fire Prevention and Building Code, the requirement of an emergency operations plan outlining procedures in case emergency situations arise, which must be shared with the local fire department and fire code official, and the regulation of surrounding combustible vegetative growth.

Despite these efforts to address concerns, there seems to remain a reluctance in many Hudson Valley Communities to welcome, or even allow BESS in their communities. Given the tangible benefits of these systems, and the availability of technical assistance in regulating and ensuring safety of the facilities, it seems short sighted to severely limit or outright prohibit BESS in our region. In fact, if efforts are not made to reasonably and rationally regulate these facilities, it is likely that NY Courts and eventually the NY Legislature may step in. There is recent case law that indicates the potential direction of NY Courts in determining what constitutes public utilities. In Freepoint Solar LLC v. Town of Athens Zoning Board of Appeals, 2024 NY Slip Op 34628(U) (Sup. Ct.), the court determined that a solar electric generating facility is a public utility. This classification provides a less stringent standard in the use variance analysis where the utility must demonstrate its service as a “public necessity” for the greater public need for that facility. It is not unreasonable to think that the court may render a similar decision regarding battery energy storage systems.

Municipalities, through their zoning regulations and building departments, would be well-advised to utilize NYSERDA’s model law and recommendations of the State task force to implement rational regulations to provide a safe, secure, and successful environment for these systems to operate, therefore promoting grid reliability, renewable energy storage, and economic benefits to customers.