The U.S. Supreme Court case Eastern Enterprises v. Kenneth S. Apfel, Commissioner of Social Security, et al., 1997 revolved around the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), which required coal operators to provide health benefits for retired miners and their families. Eastern Enterprises challenged this act on the grounds that it violated the Takings Clause of the Fifth Amendment and Due Process Clause because they were being held liable for employees who worked for them before 1966 when no such obligation existed. In a complex decision with multiple opinions, a plurality led by Justice O'Connor found in favor of Eastern Enterprises stating that retroactive legislation like this did indeed violate due process rights as it was overly severe and disruptive to companies' expectations regarding their financial obligations towards retirees. However, there was disagreement among justices about whether or not this constituted a "taking" under Fifth Amendment jurisprudence; some argued that since no property had been physically taken from Eastern Enterprises but rather an economic burden imposed upon them, it didn't qualify as such.

In the dissenting opinion for Eastern Enterprises v. Apfel, Justice Kennedy argued that the Coal Act's allocation of liability to Eastern was not a regulatory taking because it did not involve an actual physical invasion or permanent appropriation of property. He contended that the Court had never found a taking where governmental action caused diminished profits or value alone and warned against expanding this doctrine in such a way. Furthermore, he disagreed with plurality’s view on retroactivity, stating that Congress has broad authority to legislate retrospectively when it is necessary to achieve its goals. He also noted that Eastern voluntarily entered into agreements knowing they would have long-term consequences and thus should bear some responsibility for their outcomes.