Cite as: 524 U. S. 498 (1998)
Breyer, J., dissenting
Eastern knew, by the very nature of the problem, that any legislative effort to solve such a problem could well occur many years into the future. And, most importantly, Eastern played a significant role in creating the miners' expectations that led to this legislation. Add to these circumstances the two others I have mentioned—that Eastern had benefited from the labor of the miners for whose future health care it must provide, and that Eastern remained in the industry, drawing from it substantial profits (though doing business through a subsidiary, which usually, but not always, insulates an owner from liability).
The upshot, if I follow the form of analysis this Court used in Connolly, is that I cannot say the Government's regulation has unfairly interfered with Eastern's "distinct investment-backed expectations." See Connolly, supra, at 225-227 (analyzing "taking" in terms of three factors: (1) "economic impact"; (2) interference " 'with distinct investment-backed expectations' "; and (3) " 'character of the governmental action' " (citations omitted)). Within that framework, I could find additional support for the constitutionality of the "reach-back" liability provision by adding that the "character of the governmental action" here amounts to the creation of a liability to a third party, and not a direct "taking" of an interest in physical property. And the fact that the statute here narrows Eastern's liability to those whom it employed, while explicitly preserving Eastern's rights to indemnification from others (thereby helping Eastern spread the risk of this liability), 26 U. S. C. § 9706(f)(6), helps to diminish the Coal Act's "economic impact" upon Eastern as well.
I would put the matter more directly, however. The law imposes upon Eastern the burden of showing that the statute, because of its retroactive effect, is fundamentally unfair or unjust. The circumstances I have mentioned convince me that Eastern cannot show a sufficiently reasonable expectation that it would remain free of future health care cost liability for the workers whom it employed. Eastern has
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