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Supreme Court Will Not Hear Wyoming Coal Port Lawsuit Against Washington

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By Jim Angell, Cowboy State Daily

The U.S. Supreme Court on Monday rejected an attempt by Wyoming and Montana to sue Washington over its refusal to license a proposed coal export terminal.

The court, without comment, denied a request to hear the complaint that alleged Washington officials looked beyond the environmental impacts of the port on Washington when deciding whether to license the Millenium Coal Export Terminal and made their decisions based on the impact of using coal for fuel in other countries.

A note on the Supreme Court’s website said Justices Clarence Thomas and Samuel Alito Jr. supported hearing the case, but the other seven justices ruled to deny the request.

Gov. Mark Gordon called the court’s decision “frustrating” because It leaves open the question of whether one state can block another from selling its goods.

“This case was never about a single permit or product,” he said. “It was about the ability of one state to engage in lawful interstate commerce without the interference of another state. Today it is coal, tomorrow it could be agricultural products or any of our state’s abundant natural resources. At some point the Supreme Court is going to need to take on this matter.”

The Wyoming Mining Association, which represents the state’s coal mining companies, had backed the state’s legal action.

“We’re very disappointed,” said WMA Executive Director Travis Deti. “I really don’t have much more to add on this one.”

The case stems from a decision by Washington officials to block development of the coal export terminal, which would have provided a place to load coal for shipment to overseas markets. Washington officials blocked the project’s construction on the grounds it would violate the Clean Water Act.

However, Wyoming and Montana officials, in a lawsuit filed in January, asked the U.S. Supreme Court to review the actions of Washington officials, alleging the denial violated the Interstate Commerce Clause, which gives only the federal government the authority to regulate the flow of goods between states.

The two states also alleged that Washington officials looked beyond the local impacts of the port and instead based their decision on the state’s political opposition to the use of coal as a fuel.

The company proposing the coal terminal went bankrupt earlier this year, prompting the U.S. Solicitor General to ask that the Supreme Court not take up the case because it was moot.

Wyoming and Montana officials countered that justices needed to address the question of whether Washington could interfere with the sale of Powder River Basin coal to overseas clients.

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Federal Government Took ‘Insulting’ Stances In Oil, Gas Lawsuit, Says Former BLM Official

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Photo credit: Kevin J. Beaty/Denverite
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By Jim Angell, Cowboy State Daily

The federal government made some “insulting” arguments in its efforts to maintain a moratorium on oil and gas leases on federal land, according to a former U.S. Bureau of Land Management official.

William Perry Pendley, a former Wyoming attorney who served as the BLM’s deputy director for policy and programs under former President Donald Trump, said he found “arrogant” the federal government’s arguments that it would find a way to halt lease sales on federal property even if a federal judge in Louisiana ruled the sales must resume.

“The government says ‘Even if you tell us to keep doing sales, we have the discretion to implement the postponement with another rationale, we will find another way not to obey the law,’” he said. “It’s pretty arrogant.”

U.S. District Judge Terry Doughty in Louisiana on Tuesday granted an injunction sought by 13 states to keep the administration of President Joe Biden from blocking oil and gas lease sales on federal property.

Biden several days after taking office issued an executive order halting oil and gas lease sales on federal property pending a review of the lease program.

The lawsuit filed in Louisiana alleged the halt to sales was issued without following the proper administrative steps as outlined in the Administrative Procedures Act.

The lawsuit is similar to one filed in U.S. District Court in Wyoming by Wyoming officials, who also allege that the federal government failed to follow its own rules in adopting the ban.

In his ruling, Doughty rejected several arguments by the federal government that Pendley said he found “somewhat insulting,” including one that the 13 states involved in the lawsuit did not have the authority to challenge the federal government’s actions.

“That’s pretty outrageous that a sovereign state doesn’t have the right to come into court and try to save an economy,” Pendley said.

He added that another argument that the states were not harmed by the ban because existing oil and gas leases were not affected by Biden’s actions were not accurate because of the amount of time needed to develop a leased area.

“These things take time and the leases they issue today … are going to be drilled sometime in the future,” he said. “If they are not issued today, then we will have real trouble down the road.”

Some groups have maintained that the judge’s injunction only requires the BLM to hold oil and gas lease sales and that the BLM itself has discretion over how many parcels it will actually offer during those sales.

Pendley said he could not predict whether the BLM might significantly reduce its lease offerings to comply with the desires of the administration.

“You have a Secretary (of the Interior) who says she is opposed to fracking, a president who says he is opposed to fracking and 90% of all wells are fracked, so if you lease, you are going to have fracking,” Pendley said. “It’s entirely possible, as the government lawyers told the judge, ‘We can find a way around this.’”

However, he added it might be difficult for a government attorney to argue in defense of such an action.

“I think that would be insulting,” he said. “I don’t think a court would look lightly on that. I would not want to be the state (BLM) director who goes into court and explains to the judge how I complied with the judge’s order by putting one lease up for sale.”

Doughty declared his injunction to apply to all federal properties in the country, but Pendley said he did not believe it would stop progress on Wyoming’s lawsuit, largely because of questions over whether a judge in Louisiana can issue an injunction in effect nationally.

“There is some dispute about whether those district court judges have the authority to issue nationwide injunctions,” Pendley told Cowboy State Daily. “The important thing is I don’t believe the Wyoming district court will stand down because of this.”

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Gordon Applauds Judge’s Ruling Against Biden Oil And Gas Lease Moratorium

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By Brianna Kraemer , The Center Square

Wyoming Gov. Mark Gordon expressed his content on Wednesday after a federal judge blocked the Biden administration’s moratorium on new federal oil and gas leases.

A U.S District judge based out of Louisiana granted a preliminary injunction in the case on Tuesday, ultimately restraining the U.S. Department of Interior from continuing to implement the pause on new oil and natural gas leases on public land or offshore waters.

The decision is a major setback for President Joe Biden’s climate change agenda.

Wyoming relies heavily on lease sale revenue to fund its public services, Gordon noted in his statement.

“This preliminary injunction is outstanding news for Wyoming and our energy workers. It confirms the position we have maintained since this ‘pause’ was implemented,” Gordon said.

“The Biden Administration has in fact put in place an unlawful, de-facto moratorium, causing economic harm to states like ours that rely on lease sale revenue to fund our schools and critical functions of government,” he added.

Biden’s executive order halting new oil and gas leases went into effect just a week after Inauguration Day. The order, called “Tackling the Climate Crisis at Home and Abroad,” pauses new leases until a comprehensive review of the environmental impacts can be assessed.

Wyoming is the nation’s top producer of onshore gas that takes place on federal lands, and second in the nation for its federal onshore oil production, according to the Bureau of Land Management. 

Of the nearly 63 million acres in the state of Wyoming, oil and gas leases managed by the bureau accounted for 8.4 million acres of land from over 13,000 leases in recent years.

With Tuesday’s ruling, Gordon said he hopes a similar ruling will be issued in a case filed in the U.S. District Court of Wyoming.

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Barrasso and Energy Sec. Granholm Agree on Domestic Uranium For Bill Gates Nuclear Plant

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By Jimmy Orr, Cowboy State Daily

It’s not like the two politicos from opposite sides of the aisle walked out of a conference room holding hands and singing “Love Will Keep Us Together,” but America did bear witness to a rare bipartisan agreement on Tuesday.

Energy Secretary Janet Granholm, a Democrat and former governor of Michigan, agreed with U.S. Senator John Barrasso, a Republican from Wyoming, on the necessity for a domestic supply of uranium to supply a proposed nuclear power plant in the Cowboy State.

In order to power the “Natrium” reactor plant, Barrasso said high-assay, low-enriched uranium (HALEU) would be necessary, which can be supplied only by the Department of Energy or Russia.

He asked Secretary Granholm what steps the department is taking so that the U.S. doesn’t have to rely on Russia for the energy.

“We agree that we need to develop that supply of HALEU and the budget requests $33 million in that regard to start that process and make sure that we will have on an ongoing basis access to that critical mineral,” Granholm said.

Pleased with her response, Barrasso noted there were individuals in the Energy Department who didn’t share those feelings so it was “good to hear that you’re on board on this,” he said.

“For sure,” Granholm said. “It goes right into again, this notion of us being able to make sure that we have the means for our own for our own supply chains for our own energy.”

The plant proposed for Wyoming will generate 345 megawatts and will also be able to store enough energy to generate 500 megawatts of power for more than five hours.

The plant will be built at one of Rocky Mountain Power’s existing coal power plants near Rock Springs, Glenrock, Kemmerer or Gillette. The location should be decided by the end of the year.

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Oil, Gas CEO Slams North Face Company As Hypocritical

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By Ellen Fike, Cowboy State Daily

The CEO of an oil and gas company with offices in Gillette and Colorado is criticizing the apparel company North Face as hypocritical for taking a stance against oil and gas by refusing to accept a clothing order from a Texas company while using petrochemicals in its products.

Chris Wright, CEO of Liberty Oilfield Services, posted a short video last week thanking North Face for being an “extraordinary customer of the oil and gas industry” despite the company’s refusal to fulfill an order of 400 jackets from a Texas oil and gas company because North Face did not want to be affiliated with the industry.

“I went through North Face’s website of wide-ranging products and I failed to find a single thing that wasn’t made out of oil and gas,” Wright said in the video. “Their vast manufacturing, distribution and retailing networks are also large consumers of gasoline, diesel, natural gas, propane, jet fuel, etc.”

Wright added that by providing material for North Face’s apparel, the oil and gas industry has contributed to people’s outdoor recreational choices, which has helped North Face’s business,

Liberty also posted a billboard in Denver this week with another “thanks” to the company.

“That North Face puffer looks great on you. And it was made from fossil fuels,” the billboard reads, adding a website also called thankyounorthface.com.

The comments stem from an incident in December, when North Face rejected an order for 400 jackets by Innovex Downhole Solutions, a well drilling company. The company’s CEO, Adam Anderson, told energy research company Hart Energy he was told The North Face refused to fill the order because he wanted the Innovex logo on the jackets and The North Face did not want to be affiliated with an oil and gas company.

North Face has responded to Wright’s criticism (although neither he nor Liberty were mentioned by name), promising that by 2025, 100% of its most used apparel materials will be recycled, regenerative or renewable and the company intends to eliminate all single-use plastic packaging.

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Wyoming AG Says Lawsuit Over Washington Coal Port Must Go On

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By Jim Angell, Cowboy State Daily

The U.S. Supreme Court needs to stop the state of Washington from unconstitutionally blocking the delivery of Powder River Basin coal to foreign markets, according to the attorneys general for Wyoming and Montana.

The two states, in a brief filed with the court, argued justices should take up their challenges to Washington’s denial of permits needed for a proposed coal terminal, even though the terminal’s developer has gone bankrupt.

The brief filed Monday said the issues posed by Wyoming and Montana go far beyond which company will build a terminal and apply directly to Washington’s discrimination against the use of coal as fuel.

“Montana and Wyoming are challenging Washington’s longstanding discrimination against two landlocked states’ sovereign interests in getting one of their most important commodities to market,” the brief said. “Washington’s hostility to coal exports … remains unchanged. Washington has changed nothing and will continue to block Powder River Basin coal exports based on coal’s end use in foreign markets …”

The brief was filed in response to a request from the U.S. Solicitor General asking that the Supreme Court dismiss the lawsuit filed by Wyoming and Montana against Washington in January. The solicitor general argued because the company proposing the Millenium Coal Export Terminal has gone bankrupt, the challenge is moot.

But the brief filed by Wyoming Attorney General Bridget Hill and Montana Attorney General Austin Knudsen said the more important issue of Washington’s refusal to issue permits for a coal terminal, regardless of who develops it, must be addressed.

“Washington will continue to block port development and dissuade bidders from taking up this otherwise lucrative project,” the brief said. “Evidenced by its successful eight-year crusade to kill the terminal project, Washington’s policy-driven interpretation of its laws and regulations is not going to change on its own.”

In their initial lawsuit, Wyoming and Montana officials argued that in denying permits for the terminal, Washington did not simply look at the environmental impacts of the port on Washington, but at the environmental impact of using coal for fuel in other countries. Such “extraterritorial” factors should not have figured into the state’s decision, the lawsuit said.

Monday’s brief said even though the developer of the terminal has declared bankruptcy, Washington’s continued discrimination against Powder River Basin coal will infringe on the “sovereign interests” of Wyoming and Montana by unconstitutionally blocking commerce by the states.

The U.S. Supreme Court is the only court that can issue a judgment in such cases, the two states said, making it necessary for the legal action to proceed.

“If anything, that the developer is now bankrupt is one more fact to be weighed in determining the important legal issue raised in this matter — whether Washington’s policies and practices violate the Commerce Clause (of the Constitution) to Wyoming and Montana’s detriment,” the brief said.

Unless prevented from doing so, Washington will continue to prevent the construction of coal ports, the brief said.

“Without relief from this court — the only forum with the power to grant it — Wyoming and Montana likely will never see their abundant coal reserves to foreign markets,” it said.

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Gordon Relaunching Program To Encourage Oil, Gas Projects In Wyoming

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By Ellen Fike, Cowboy State Daily

Gov. Mark Gordon is dedicating up to $12 million in federal CARES Act funds to re-launch the Energy Rebound Program, which is designed to get more people working in the energy industry.

In 2020, the program provided capital for specified oil and gas projects, including drilled but uncompleted ventures, the replacement of equipment to lengthen the life of wells and the reclamation of oil and gas wells through the plugging and abandonment process.

“The Energy Rebound Program successfully provided opportunities for oil and gas industry employees who lost jobs when drilling ceased last year,” Gordon said. “This program will continue to provide economic benefits to this important industry, their workforce and the entire state of Wyoming.”

Wyoming’s oil and gas industry is lagging due to external market factors, according to the governor’s office.

Currently, there are nine drilling rigs operating in Wyoming, down from more than 30 running in February 2020.

The program again target projects that bring immediate economic benefits, including job growth and revenue, along with the environmental benefits of plugging and reclaiming oil and gas wells that are no longer in use or near the end of their useful life.

“As energy demand continues to increase, private-land production states have seen a quicker rebound, one that has yet to reach Wyoming’s federally-owned resources. Given the success of the inaugural Energy Rebound Program, a jobs program at its core, Gov. Gordon’s decision to initiate a second round makes perfect sense,” said Pete Obermueller, President of the Petroleum Association of Wyoming. “In 2020, despite a quick turnaround over the holidays, the men and women of the oil and gas industry stepped up, utilizing more than 100 service companies from 14 Wyoming towns to complete their work, supporting thousands of local jobs and kickstarting more than $150 million in new production.”

Last year, the oil and gas industry had just six weeks to identify and complete projects. This time, the projects will need to be completed by the end of the year.

There will be a cap of $500,000 for each approved project.

There will be a cap of $500,000 for each approved project and the Wyoming Oil and Gas Conservation Commission will administer the program.

Oil and gas operators will need to certify the number of jobs created for Wyoming workers. To qualify as a Wyoming worker, the worker must be a resident of Wyoming at the time of the application.

“We look forward to supporting the governor’s Energy Rebound Program by administering this additional funding. The program has proven to be successful in supporting projects and employment within the oil and gas industry,” stated WOGCC Deputy Supervisor Tom Kropatsch. “Our evaluation of the applications and post program reporting to ensure compliance with program rules will be essential in making this version of the Energy Rebound Program as successful as the first.”

The WOGCC will accept applications from June 15 through June 25.

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Wyoming Nuke Expert: Kemmerer Is Best Choice for Nuclear Power Plant

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By Ellen Fike, Cowboy State Daily

Although all four potential Wyoming sites for proposed nuclear power plant are great options, one of Wyoming’s leading experts in nuclear energy said Kemmerer should be at the top of the list.

Former State Rep. Dave Miller, the sponsor for legislation that cleared the way for TerraPower and its partner Rocky Mountain Power to propose construction of a next-generation nuclear power plant in Wyoming, said Kemmerer needs the economic boost that could be provided by the reactor.

“I don’t think there are cons to any of the proposed cities,” Miller said. “I’d love it to be in Fremont County [where he lives and the area he represented in the Wyoming Legislature], but we don’t have the infrastructure for it here. I think Kemmerer makes the most sense, though.”

Last week, Gov. Mark Gordon, joined by officials with TerraPower and Rocky Mountain Power, announced they are working to build the reactor at one of Rocky Mountain Power’s four retiring coal-fired power plants by 2027 or 2028. The reactor will generate 345 megawatts of power using Wyoming uranium.

The plant will be built at one of Rocky Mountain Power’s existing coal power plants near Rock Springs, Glenrock, Kemmerer or Gillette, according to Gary Hoogeveen, president and CEO of the power company. The location should be decided by the end of the year.

Miller, who has been a major proponent of the state being home to nuclear energy, told Cowboy State Daily last week that he favors Kemmerer over Gillette or Rock Springs because there is enough economic activity in those communities to keep their economies afloat

The proposed “Natrium” reactor would use technology developed by TerraPower, a nuclear power innovation company founded by software developer Bill Gates, and GE Hitachi. The technology results in a smaller nuclear power plant than has previously been built, along with improved safety measures and a power storage system.

“A small modular reactor is a perfect fit when we take these coal plants offline,” Miller said. “The infrastructure is already there. The spending is already there. You can seamlessly place one of these reactors in a former coal plant and the workers can transition from coal to nuclear power.”

In addition to generating 345 megawatts of power, the facility will be able to store enough energy to provide 500 megawatts of power for short periods of time, according to TerraPower.

Before beginning operation, the plant will have to be approved by several regulatory agencies, including the Nuclear Regulatory Commission.

A bill that Miller and former Wyoming Sen. Eli Bebout co-sponsored during the 2020 legislative session is likely the impetus for the nuclear power plant coming to Wyoming, Miller told Cowboy State Daily last week.

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Former Wyo Legislator Who Sponsored Nuke Bill Thrilled About Nuclear Power Plant

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By Ellen Fike, Cowboy State Daily

Former state Rep. Dave Miller, R-Riverton, was surprised no one from Gov. Mark Gordon’s office called him this week to give him the news.

As someone who has been pushing for nuclear energy in Wyoming for 20 years, he figured someone would give him a heads up when, if ever, there was an announcement that Wyoming could be the home to a nuclear power plant.

Miller has been passionate about nuclear energy for decades and even caused a stir 10 years ago when he managed to amend a bill saying that nuclear energy was technically a renewable resource. More recently, he was the chief sponsor for legislation that would allow the construction of small, modular nuclear power plants at coal-fired power plants.

“I mentioned many times over the years, ‘Why doesn’t Wyoming have a nuclear power plant?'” Miller told Cowboy State Daily on Friday. “I’ve been the guy shaking the trees on this.”

On Wednesday, Gov. Mark Gordon, joined by officials with TerraPower and Rocky Mountain Power, announced they are working to build the reactor at one of Rocky Mountain Power’s four retiring coal-fired power plants by 2027 or 2028. The reactor will generate 345 megawatts of power using Wyoming uranium.

Miller believes it was a bill he co-sponsored in 2020 with former Sen. Eli Bebout, R-Riverton — House Bill 74 — that helped bring the “Natrium” nuclear reactor to Wyoming. The bill allowed power plants in Wyoming to replace their natural gas and coal-fired generators with small nuclear reactors that have similar output.

The Natrium technology has been developed by TerraPower, a nuclear power innovation company founded by software developer Bill Gates, and GE Hitachi. The technology results in a smaller nuclear power plant than has previously been built, along with improved safety measures and a power storage system.

While Miller’s and Bebout’s bill is perfectly aligned to allow construction of the new power plant, Miller was quick to point out that he was never lobbied by TerraPower, or any power company, to create the bill. It’s just a passion of his. However, he said he had great supporters for the idea in the Wyoming Legislature, including Bebout.

“I’ve been getting emails from my friends in the legislature who are telling me that bill is now starting to pay dividends in Wyoming,” Miller said.

Before beginning operation, the plant will have to be approved by several regulatory agencies, including the Nuclear Regulatory Commission. However, Miller tried to write HB 74 in a way to reduce the regulatory burden on the project as possible, because he he feels overregulation has caused issues in basically every industry in the state.

Bebout and Miller both told Cowboy State Daily the Nuclear Regulatory Commission will be very important in getting the project approved, as well as up and running.

The bill also would assess a $5 per megawatt hour tax on the plant.

Although Miller said he was hesitant to add any tax, he thought $5 was an appropriate number.

“I was trying to figure out the amount of coal that a plant could burn and that tax rate for Wyoming on that coal, and I came up with $5,” he said. “I tried to amend it to $1, but it didn’t happen. However, since 93% of our power is exported out-of-state, 93% of the cost will be borne by out-of-state consumers.”

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Wyoming Enviro Groups Have Mixed Response to Bill Gates’ Nuclear Power Plant

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By Ellen Fike, Cowboy State Daily

There has been a mixed response from environmental groups in Wyoming to the recent announcement that the state may be home to a nuclear power plant in six to seven years.

While one environmental group in Wyoming welcomed the news of the proposed “Natrium” nuclear reactor demonstration plant, others were less excited and said their members were looking for more details about the reactor.

On Wednesday, Gov. Mark Gordon, joined by officials with TerraPower and Rocky Mountain Power, announced they are working to build the reactor at one of Rocky Mountain Power’s four retiring coal-fired power plants by 2027 or 2028. The reactor will generate 345 megawatts of power using Wyoming uranium.

The Nature Conservancy in Wyoming expressed optimism over the plant, which proponents said would have no harmful emissions.

“This is exciting news,” Hayley Mortimer, state director of The Nature Conservancy, told Cowboy State Daily on Thursday. “TNC Wyoming supports the development of advanced nuclear technologies because we know we need better, safer, cheaper nuclear to meet a net zero carbon goal by 2050. We appreciate the governor’s actions to make Wyoming carbon negative.”  

Alan Rogers, spokesman for the Wyoming Outdoor Council, told Cowboy State Daily that his organization is waiting to comment until it can collect more information about the project.

The Powder River Basin Resource Council also had “many” questions about the proposal, noting that the technology was still experimental, according to a group official.

“The Nuclear Regulatory Commission has yet to license a design, so this announcement appears to be premature, PRBRC chair Marcia Westkott said. “Additionally, we have concerns about the cost to build the facility, how much water will be needed for its operation, and how the waste will be safely stored.”

Westkott said the council supports reducing carbon emissions, but wants more information about the project’s technical details.

“Perhaps the most dangerous aspect of this latest claim of a ‘silver bullet’ to save Wyoming’s economy is that it once again diverts attention away from our very real crisis in revenue, jobs and community survival,” she said. “Wyoming’s elected leaders have still not come forward with a real plan to address lost jobs, declining revenues and the dissolution of coal communities. This speculative feasibility study will not do that.”

The Natrium technology has been developed by TerraPower, a nuclear power innovation company founded by software developer Bill Gates, and GE Hitachi. The technology results in a smaller nuclear power plant than has previously been built, along with improved safety measures and a power storage system.

In addition to generating 345 megawatts of power, the facility will be able to store enough energy to provide 500 megawatts of power for short periods of time, according to TerraPower.

Before beginning operation, the plant will have to be approved by several regulatory agencies, including the Nuclear Regulatory Commission.

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