Last Updated: March 2026 | 7 active state bypass pathways tracked
Local moratoriums can kill a battery energy storage project, but they don’t always have to. At least seven U.S. states have enacted laws that allow BESS developers to bypass local restrictions through state-level permitting pathways. These preemption mechanisms vary significantly in scope, threshold requirements, and processing timelines. This page explains each pathway, what qualifies, and when it makes strategic sense to use one.
The table below provides a side-by-side comparison of all seven active state bypass pathways. Click any column header to sort
| State | Law | Type | Threshold | Agency | Timeline | Bypasses Local? |
|---|---|---|---|---|---|---|
| CA | AB 205 (2022) | Opt-In Cert. | >50 MW / >200 MWh | CA Energy Commission | 12–18 months | Yes |
| IL | HB 4412 (2023) | Preemption | None specified | County boards / zoning | Unknown | Yes |
| MA | Ch. 40A, §3 (2010) | Preemption | None specified | Municipal officials | 3–5 months | Yes |
| MI | PA 233 (2024) | Preemption | >50 MW / >200 MWh | MI Public Service Comm. | 12 months | Yes |
| NY | §94-c (2021) | Preemption | >25 MW | ORES | 12 months | Yes |
| OR | HB 4015 (2024) | Preemption | None specified | OR Energy Facility Council | Unknown | Yes |
| WA | EFSEC (2022) | Preemption | None specified | WA EFSEC | Unknown | Yes |
Source: Carina Energy research. See individual state sections below for source legislation links.
Below are detailed profiles of all seven active state bypass pathways, ordered by how established and developer-tested each one is. New York and California have the longest track records and the most projects that have successfully used the state route. Michigan’s pathway is the newest and still evolving. For Illinois, Massachusetts, Oregon, and Washington, the mechanisms exist on paper but practical guidance is thinner — we’ve noted where developers should expect ambiguity and flagged where to go for the latest information. Each profile includes the enabling legislation, threshold requirements, administering agency, and a strategic assessment of when the pathway makes sense for a BESS project.
Enabling Legislation: NY Executive Law Section 94-c
Effective Date: March 3, 2021
Pathway Type: State Preemption
Threshold: >25 MW
Administering Agency: Office of Renewable Energy Siting (ORES), within the Department of Public Service
Typical Timeline: 12 months (statutory deadline)
Application URL: https://dps.ny.gov/ores-permit-applications
What It Does
Section 94-c created ORES as a centralized permitting body for large-scale renewable energy and storage projects. For BESS projects exceeding 25 MW, ORES can issue a single state permit that supersedes all local zoning, building codes, and moratoriums. This means a developer with a 26 MW battery project can bypass a town’s moratorium entirely by going through the state process instead of the local one.
Key Requirements:
Strategic Insight
Sizing a battery project at 26 MW (just above the threshold) unlocks sites blocked by local moratoriums. However, the ORES process adds 12–18 months to your permitting timeline compared to a cooperative local approval. This is most valuable in New York, where 98 of the state’s jurisdictions have enacted some form of BESS restriction. For projects under 25 MW, developers must work within the local permitting framework.
Source: NY Executive Law §94-c (FindLaw) | ORES Permit Applications
Enabling Legislation: Assembly Bill 205 (2022)
Effective Date: June 30, 2022
Pathway Type: Opt-In Certification
Threshold: >50 MW / >200 MWh
Administering Agency: California Energy Commission (CEC)
Typical Timeline: 12–18 months
Application URL: https://www.legislature.mi.gov/documents/2023-2024/publicact/htm/2023-PA-0233.htm
What It Does
AB 205 expanded the California Energy Commission’s jurisdiction to include battery energy storage facilities above 50 MW or 200 MWh. Developers can “opt in” to the CEC certification process, which replaces local land use approvals with a state-level review. This is particularly valuable in California counties where local permitting has become unpredictable or where moratoriums block BESS development.
Key Requirements:
Strategic Insight
The CEC opt-in is a strategic choice, not an automatic override. Developers should evaluate whether the local jurisdiction is cooperative before choosing the state route. The CEC process is thorough (CEQA-equivalent) and takes 12–18 months, so it only saves time if the local alternative is worse. Best suited for large utility-scale projects where local opposition is entrenched.
Source: AB 205 Full Text (CA Legislature) | CEC Opt-In Program
Enabling Legislation: House Bill 5120 / Public Act 233
Effective Date: November 29, 2024
Pathway Type: State Preemption
Threshold: >50 MW / >200 MWh
Administering Agency: Michigan Public Service Commission (MPSC)
Typical Timeline: 12 months (one year)
What It Does
Michigan’s Public Act 233 is the newest state preemption law in the country. It grants the Michigan Public Service Commission authority over siting of large-scale energy storage facilities, effectively removing local veto power for projects above the threshold. This was a direct response to growing local opposition to battery storage projects across rural Michigan.
Key Requirements:
Strategic Insight
PA 233 is new and the MPSC’s implementation framework is still evolving. Developers should monitor the MPSC workgroup for rulemaking updates. Despite its newness, this pathway is immediately significant because Michigan has seen a rapid increase in local BESS moratoriums. Early movers who navigate the MPSC process successfully will have a major advantage.
Source: PA 233 Full Text (MI Legislature) | MPSC Renewable Energy Siting Workgroup
Enabling Legislation: HB 4412 / Public Act 102-1123
Effective Date: January 27, 2023
Pathway Type: State Preemption
Threshold: None specified
Administering Agency: Local county boards or zoning authorities (with state-mandated parameters)
Typical Timeline: Not well-documented
What It Does
Illinois’ HB 4412 establishes state-level parameters for how counties can regulate energy storage siting. Rather than creating a separate state permitting body, the law constrains what local governments can restrict, preventing outright bans while still allowing counties to impose reasonable zoning requirements. This is a softer form of preemption that limits local authority rather than replacing it entirely.
Strategic Insight
Illinois’ approach is more nuanced than a full state takeover. Developers still work with local officials, but those officials cannot impose blanket moratoriums or bans. The lack of a size threshold means even smaller projects benefit. However, the practical effectiveness depends on county-level implementation, which can vary.
Enabling Legislation: MA General Law, Chapter 40A, Section 3
Effective Date: August 5, 2010 (original; later amended)
Pathway Type: State Preemption
Threshold: None specified
Administering Agency: Local municipal officials (with state-mandated constraints)
Typical Timeline: 3–5 months
What It Does
Massachusetts’ Chapter 40A, Section 3 (often called the Dover Amendment) provides broad protections for educational, religious, and certain energy-related land uses against exclusionary zoning. Its application to BESS facilities is through the state’s broader clean energy policies, which constrain municipalities from enacting outright bans on energy storage. The relatively short 3–5 month timeline makes this one of the faster pathways.
Strategic Insight
Massachusetts’ framework is older and less purpose-built for BESS than NY or CA. The applicability to battery storage specifically may require legal interpretation on a case-by-case basis. The fast timeline (3–5 months) is attractive, but developers should consult energy counsel before relying on this pathway for a battery-only project.
Source: Chapter 40A, Section 3 (MA Legislature) | Dover Amendment Guidance (Mass.gov)
Enabling Legislation: House Bill 4015
Effective Date: June 6, 2024
Pathway Type: State Preemption
Threshold: None specified
Administering Agency: Oregon Energy Facility Siting Council (EFSC)
Typical Timeline: Not well-documented
Application URL: https://www.oregon.gov/energy/facilities-safety/facilities/pages/default.aspx
What It Does
Oregon’s HB 4015 expanded the jurisdiction of the Oregon Energy Facility Siting Council to include battery energy storage facilities. EFSC has long handled siting for large energy infrastructure in Oregon, and this expansion brings BESS under the same state-level framework, bypassing local zoning controls.
Strategic Insight
Oregon’s pathway is through an established siting council (EFSC) with a track record of handling energy projects. The lack of a size threshold is notable. However, EFSC’s process and timeline for BESS-specific applications is still being developed. Developers should contact EFSC directly for the latest guidance on battery storage siting applications.
Enabling Legislation: EFSEC authorizing statute (expanded to BESS 2022)
Effective Date: June 30, 2022
Pathway Type: State Preemption
Threshold: None specified
Administering Agency: Washington Energy Facility Site Evaluation Council (EFSEC)
Typical Timeline: Not well-documented
Application URL: https://efsec.wa.gov/battery-energy-storage-system-bess
What It Does
Washington’s EFSEC expanded its authority to cover battery energy storage system siting. Similar to Oregon’s EFSC, EFSEC is an established state body that handles energy facility siting. The expansion to BESS means developers can use the state process to bypass local land use restrictions.
Strategic Insight
Washington’s EFSEC pathway for BESS is still relatively new and the details of how it handles battery-only projects (vs. larger generation + storage facilities) are still being clarified. EFSEC’s BESS-specific webpage is the best starting point. Developers considering Washington should engage EFSEC early in the process for pre-application guidance.
Source: EFSEC BESS Page
Not every project blocked by a local moratorium should go the state route. Use this decision framework:
Step 1: Check Eligibility
Does your project meet the state’s threshold requirements? If your project is 20 MW in New York (threshold: 25 MW), the ORES pathway is not available. You either need to resize the project or work within the local framework.
Step 2: Assess Local Viability
Is the local moratorium temporary or permanent? If a 6-month moratorium expires next quarter and the jurisdiction has signaled willingness to adopt BESS-friendly zoning, waiting may be faster than a 12-month state process. If the moratorium is indefinite or the jurisdiction is hostile, the state pathway may be your only option.
Step 3: Evaluate Timeline Impact
State pathways typically add 12–18 months to your permitting timeline. Model the financial impact of this delay against the cost of finding an alternative site. In some cases, moving to a non-moratorium jurisdiction is faster and cheaper.
Step 4: Budget for the Process
State-level permitting requires environmental assessments, community engagement plans, and legal representation. These costs are significant and should be factored into your project proforma early.
Battery storage moratoriums are one of the fastest-growing regulatory challenges facing BESS developers. Here are answers to the questions we hear most often.
Not directly. Threshold requirements are firm. However, some developers strategically upsize projects to meet the threshold (e.g., designing a 26 MW system instead of 20 MW in New York). The additional capacity may also improve project economics through increased revenue. If upsizing isn’t viable, you’ll need to work within the local permitting framework or find an alternative site.
Generally yes, but the mechanism varies. Some states (NY, CA, MI) create a complete state-level replacement for local permits. Others (IL, MA) constrain what locals can restrict rather than replacing local authority entirely. In all seven states, an outright moratorium or ban can be bypassed, but developers may still need to comply with reasonable local requirements like setbacks or noise limits.
In cooperative jurisdictions, local permitting can be as fast as 3–6 months. State bypass pathways typically take 12–18 months. The state route is only faster when local opposition makes the alternative effectively impossible. Think of it as the difference between “12 months to approval” and “infinite months of local stalling.”
Yes. The trend is accelerating. Michigan enacted PA 233 in late 2024, and several other states are considering similar legislation as BESS moratoriums proliferate. States with aggressive clean energy mandates and growing local opposition are the most likely candidates. We track new legislation through this page and our newsletter.
Yes. Carina provides Fatal Flaw Analysis that evaluates whether a state bypass pathway is viable for your specific project, including threshold analysis, timeline modeling, and regulatory risk assessment. Contact us to discuss your project.
The map and table above show the summary. Subscribers get the complete picture: a full Excel export with 15+ fields per record, including source URLs to every ordinance, strategic commentary from our expert team, expiration dates, and scope details you won’t find anywhere else. Plus weekly alerts whenever a moratorium is enacted, extended, lifted, or challenged.