The plurality examines the statute and its resultant harm as an ad hoc factual inquiry based on factors delineated in Penn Central Transportation Co. v. New York City,[2] such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action.

[4] However, while the plurality seems to invalidate this particular law on takings grounds, the concurrences and the dissents warn of such an analysis as this should actually be examined under substantive due process or ex post facto theories.

The plurality looked to the factors enunciated in Penn Central[2] to determine if the enacted legislation functioned to deprive Eastern Enterprises of property without just compensation.

Since Penn Central, the factors enunciated by Justice Brennan therein have been used to determine when a regulation rises to the level of a taking thereby requiring just compensation under the Fifth Amendment.

Fourth, and perhaps not independent, the Court examined the ex post facto nature of the effect of the Coal Industry Retiree Health Benefit Act of 1992 on Eastern.

The majority examined such under its Penn Central analysis while the concurrence and the dissents actually looked at it as a distinct basis to hold the Congressional Act unconstitutional.

The plurality ruled that the Penn Central factors applied in cases of economic regulation as a way to find a statute unconstitutional when it effects a taking of property for public use without just compensation.

491 (Ill. Jun 05, 2008) specifically relied on Justice Breyer's interpretation and determined that in cases of economic regulation the Petitioner must overcome the presumption of Constitutionality with a showing of fundamental unfairness.

The Eastern Enterprises v. Apfel case brought some partial and desperately needed relief from the Reachback Tax to dozens of corporations, mom and pop companies and even individuals economically ravaged by the mandate to pay for healthcare benefits for individuals who had virtually no association with those being taxed or assessed the obligations of the Coal Industry Retiree Health Benefit Act of 1992.

That act provided for arguably the most generous fully paid healthcare benefits in the nation, including pregnancy termination for family members of those designated as beneficiaries of the Reachback Tax.

Jones, Day, Reavis & Pogue's Washington office coordinated that coalition through its long-time Congressional consultant Sam Richardson.