Cite as: 511 U. S. 383 (1994)
O'Connor, J., concurring in judgment
term contracts for the supply of solid waste to resource recovery facilities [or] from entering into long-term contracts for the operation of such facilities." § 6943(a)(5).
Amicus also points to a statement in a House Report addressing § 6943(a)(5), a statement evincing some concern with flow control:
"This prohibition [on state or local laws prohibiting long-term contracts] is not to be construed to affect state planning which may require all discarded materials to be transported to a particular location. . . ." H. R. Rep. No. 94-1491, p. 34 (1976) (emphasis added).
Finally, in the Solid Waste Disposal Act Amendments of 1980, Congress authorized the Environmental Protection Agency (EPA) to "provide technical assistance to States [and local governments] to assist in the removal or modification of legal, institutional, and economic impediments which have the effect of impeding the development of systems and facilities [for resource recovery]." § 6948(d)(3). Among the obstacles to effective resource recovery are "impediments to institutional arrangements necessary to undertake projects . . . including the creation of special districts, authorities, or corporations where necessary having the power to secure the supply of waste of a project." § 6948(d)(3)(C) (emphasis added).
I agree with amicus NABL that these references indicate that Congress expected local governments to implement some form of flow control. Nonetheless, they neither individually nor cumulatively rise to the level of the "explicit" authorization required by our dormant Commerce Clause decisions. First, the primary focus of the references is on legal impediments imposed as a result of state—not federal—law. In addition, the reference to local authority to "secure the supply of waste" is contained in § 6948(d)(3)(C), which is a delegation not to the States but to EPA of authority to assist
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