In Virginia, the Cart Comes Before the Horse—At Least in Solar

Virginia's new battery storage law may allow industrial battery facilities to be built before the solar projects supposedly required to justify them.

By William Russell  |  President and CEO, Rockbridge Taxpayers Alliance  |  October 21, 2026

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Virginia's General Assembly may have created a significant loophole in the Commonwealth's land-use laws, potentially allowing developers to construct industrial battery energy storage facilities without ever building the solar generating projects upon which their approval depends.

The problem arises from Virginia Code § 15.2-2316.10, enacted in 2026 through HB 891 and SB 443.

The legislation designates qualifying battery energy storage systems (BESS) as permitted accessory uses on properties with approved solar special exceptions. It also prohibits local governments from requiring another special exception or other local land-use approval for qualifying battery installations.

What the statute does not require may be more consequential than what it authorizes.

Nowhere does it expressly require construction or operation of the associated solar generating facility before battery development can proceed. That omission raises important questions about local zoning authority, public safety, and the General Assembly's intentions.

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What the Law Says—and Doesn’t Say

Subsection B(1) makes qualifying BESS a permitted accessory use on property subject to an approved solar special exception. The battery installation must be located within the approved parcel, and its rated storage capacity cannot exceed 100% of the associated solar facility's nameplate generating capacity.

Subsection B(2) provides that qualifying battery storage “shall not require a special exception or be subject to any other local land use approval.”

The statutory trigger is approval of the solar special exception—not construction of the solar facility.

Traditionally, an accessory use is incidental and subordinate to a principal use. Yet the statute does not expressly require that principal use to exist before its accessory use is developed. Whether Virginia courts would interpret the legislation to permit that sequence remains unresolved.

The absence of clear limiting language creates uncertainty that should not be left for local governments to resolve through costly litigation.

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Could Batteries Come Before Solar Panels?

Consider a developer proposing a 3-megawatt solar installation on agricultural land. The local governing body grants a special exception for solar generation. The developer then seeks to construct a qualifying battery storage facility without first building the solar installation.

Does the statute prohibit that sequence? Not expressly.

What happens if the developer subsequently abandons the solar project? Does the battery installation retain its permitted-use status? What if the solar special exception expires or is revoked? The statute does not explicitly answer these questions.

This creates the possibility that developers could secure solar approvals primarily to establish valuable battery storage development rights. There is no basis for concluding that any particular developer intends to follow such a strategy. Nevertheless, the potential legal consequences deserve statewide attention.

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Local Governments Could Bear the Costs

Battery storage presents emergency-response challenges substantially different from ordinary solar generation. Large lithium-ion battery installations can experience thermal runaway, release hazardous gases, and require prolonged emergency operations.

Responding effectively may require specialized personnel training, protective equipment, atmospheric monitoring, hazardous-materials capabilities, and evacuation planning. These responsibilities are especially significant in rural Virginia, where volunteer fire departments and regional mutual-aid arrangements provide essential emergency services.

Although subsection C preserves applicable fire, safety, and environmental requirements, those protections do not replace the broader public-interest review traditionally conducted during a special exception proceeding.

Subsection D provides that financial commitments associated with the original solar approval do not automatically extend to subsequent battery storage installations.

Local governments may negotiate separate agreements, but the law does not guarantee that developers will accept additional financial obligations. Counties could therefore inherit significant emergency-response responsibilities without receiving corresponding financial commitments or another opportunity for discretionary land-use review.

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The Implications Extend Across Virginia

This issue affects more than future solar applications. Existing approved solar projects may now possess additional development opportunities that local governing bodies never contemplated when granting their original special exceptions. That includes projects whose construction has been delayed or whose financial arrangements have deteriorated.

The legislation also contains a provision addressing qualifying battery projects with interconnection requests filed before July 1, 2030, adding urgency to the need for clarification.

The General Assembly should answer four questions:

1. Must construction or operation of the associated solar facility precede BESS development?

2. Does BESS lose its accessory-use status if the solar project is abandoned, never constructed, or its approval expires?

3. Should local governments retain discretionary review of additional environmental, infrastructure, and public-safety consequences?

4. Should developers be required to address additional emergency-response costs imposed on local governments?

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The Public Interest Must Come First

Battery storage has a legitimate role in Virginia's electrical system. That is not the issue.

The question is whether legislation intended to facilitate renewable-energy development has inadvertently established a pathway for industrial battery installations that bypasses important local land-use protections.

A special exception is not merely an administrative formality. It is a public decision about whether a particular land use is appropriate under Virginia law, local zoning ordinances, and adopted comprehensive plans.

Rockbridge Taxpayers Alliance calls upon the Governor, Attorney General, and General Assembly to clarify § 15.2-2316.10 and, if necessary, adopt corrective legislation during the 2027 session.

If the legislature intended battery storage to remain genuinely accessory to solar generation, the statute should explicitly preserve that relationship. If it intended to permit battery construction before solar generation—or without the solar facility ever being completed—that policy decision should be openly acknowledged and evaluated.

Virginia should not discover the practical consequences of this legislation one contested local permit at a time.

Statutory reference: Virginia Code § 15.2-2316.10