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Filed March 29, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-3234 and 97-3236

UNITY REAL ESTATE COMPANY, Appellant No. 97-3234

v.

MARTY D. HUDSON; MICHAEL H. HOLLAND; THOMAS O. S. RAND; ELLIOTT A. SEGAL; CARLTON R. SICKLES; GAIL R. WILENSKY; WILLIAM P. HOPGOOD; TRUSTEES

OF THE UNITED MINE WORKERS OF AMERICA COMBINED BENEFIT FUND; THOMAS F. CONNORS; ROBERTS WALLACE; TRUSTEES OF THE 1992 UNITED

MINE WORKERS OF AMERICA BENEFIT PLAN; UNITED STATES OF AMERICA (Intervenor in District Court)

LTV Corporation (LTV), NACCO Industries, Inc. (NACCO); Amicus Curiae

BARNES AND TUCKER COMPANY, Appellant No. 97-3236

v.

MARTY D. HUDSON, Trustee of the United Mine Workers

of America Combined Benefit Fund and Trustee of the 1992 United Mine Workers of America Benefit Plan; MICHAEL H. HOLLAND, Trustee of the United Mine

Workers of America Combined Benefit Fund and Truste e of the 1992 United Mine Workers of America Benefit Plan; THOMAS O. S. RAND, Trustee of the United Mine Workers of America Combined Benefit Fund; ELLIOTT A

. SEGAL, Trustee of the United Mine Workers of Americ a Combined Benefit Fund; CARLTON R. SICKLES, Trustee

of the United Mine Workers of America Combined Bene fitFund; GAIL R. WILENSKY, Trustee of the United Mine

Workers of America Combined Benefit Fund; WILLIAM P

. HOPGOOD, Trustee of the United Mine Workers of America Combined Benefit Fund; THOMAS F. CONNORS,

Trustee of the 1992 United Mine Workers of America Benefit Plan; ROBERT G. WALLACE, Trustee of the 199 2 United Mine Workers of America Benefit Plan; UNITED STATES OF AMERICA (Intervenor in the District Court )

LTV Corporation (LTV), NACCO Industries, Inc. (NACCO); Amicus Curiae

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 93-cv-01802) District Judge: Honorable D. Brooks Smith

Argued: November 20, 1998

Before: BECKER, Chief Judge, ALDISERT and WEIS, Circuit Judges.

(Filed March 29, 1999)

DAVID J. LAURENT, ESQUIRE MICHAEL D. GLASS, ESQUIRE Polito & Smock, P.C. Suite 400 - Four Gateway Center Pittsburgh, PA 15222-1207

ROBERT H. BORK, ESQUIRE (ARGUED) 1150 17th Street, N.W. Washington, DC 20036

Attorneys for Unity Real Estate Co.

2FRANK W. HUNGER, ESQUIRE

Assistant Attorney General

LINDA L. KELLY, ESQUIRE United States Attorney

DOUGLAS N. LETTER, ESQUIRE EDWARD R. COHEN, ESQUIRE (ARGUED)

SUSHMA SONI, ESQUIRE Attorneys, Appellate Staff Civil Division, Room 9014 United States Department of Justice 601 D Street, NW Washington, DC 20530-0001

Counsel for the United States of

America

PETER BUSCEMI, ESQUIRE (ARGUED)

JOHN MILLS BARR, ESQUIRE MARGARET S. IZZO, ESQUIRE Morgan, Lewis & Bockius LLP 1800 M Street, N.W. Washington, DC 20036

DAVID W. ALLEN, ESQUIRE

Office of the General Counsel

UMWA Health and Retirement

Funds 4455 Connecticut Avenue, NW Washington, DC 20008

JOHN R. MOONEY, ESQUIRE MARILYN L. BAKER, ESQUIRE Mooney, Green, Baker, Gibson & Saindon, P.C. 1341 G Street, NW, Suite 700 Washington, DC 20005

3RALPH A. FINIZIO, ESQUIRE

Houston, Harbaugh Two Chatham Center, 12th Floor Pittsburgh, PA 15219

Attorneys for UMWA Combined

Benefit Fund and Its Trustees and

UMWA 1992 Benefit Plan and its

Trustees

DONALD B. AYER, ESQUIRE

GREGORY B. KATSAS, ESQUIRE (ARGUED) Jones, Day, Reavis & Pogue Metropolitan Square 1450 G Street, NW Washington, DC 20005

Attorneys for Amici Curiae The LTV Corporation and NACCO Industries, Inc.

OPINION OF THE COURT

BECKER, Chief Judge.

In Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1 998), the Supreme Court held unconstitutional the portion of the 1992 Coal Industry Retiree Health Benefit Act (Coal Act), 26 U.S.C. SS 9701-9722 (1994 & Supp. II), that require d former coal mine operators to pay for health benefi ts for retired miners and their dependents, as applied to a former operator who last signed a coal industry benefit ag reement in 1964. In this case, we are asked to apply Easter n to former coal mine operators who were signatories to coal industry agreements in 1978 and thereafter. Eastern was decided by a sharply divided Court, and the parties disagree as to what, if any, principles commanded a majority.

The plaintiffs, Unity Real Estate ("Unity") and Bar nes & Tucker Co. ("B&T"), challenge the Coal Act as appli ed to them as both a violation of substantive due process and an

4unconstitutional uncompensated taking. Although it is an

exceedingly close question, and we are highly sympa thetic to plaintiffs' unfortunate situation, in which retr oactively imposed liability operates to bind them to commitme nts they had thought satisfied when they left the coal industry, we conclude that the Act is constitutional as appli ed to these plaintiffs. Accordingly, their recourse must be to Congress rather than to the courts.

First, we conclude, albeit with substantial hesitat ion, that the Coal Act does not violate due process. Our due process inquiry proceeds in two parts. We acknowled ge at the outset that there is a gap between what the con tracts between the union and the mining companies required and

what the Coal Act now mandates from those former mi ning companies. Because this is a substantive due proces s challenge, we accord deference to Congress's judgme nts, based on the report and recommendations of the Coal

Commission. While reasonable minds could differ on the point, we are satisfied that the agreements signed by the plaintiffs in 1978 and thereafter promised that min ers and their dependents would receive lifetime benefits fr om the benefit funds, and that, at all events, these agree ments informed reasonable expectations that the benefits would continue for life. Similarly, we conclude that it w as reasonable for Congress to conclude that the plaint iffs'

withdrawal from the funds contributed to the funds' financial instability, though the agreements themse lves permitted withdrawal. The history of coal mining in this country also supports Congress's decision to step i n when the funds that provided health benefits to retired miners began to falter.

The question we must then answer is whether those congressional judgments provide enough of a rationa le for closing the gap between the contracts and the needs of the benefit funds through the mechanism of the Coal Act

. Consistent with our due process jurisprudence, we a sk whether the Coal Act was a rational response to the problems Congress identified, taking into account t he Act's retroactivity, which is highly disfavored in our le gal culture. In light of Congress's findings and in the context of extensive government regulation of the coal industr y, we

5hold that it was not fundamentally unfair or unjust for

Congress to conclude that the former coal companies should be responsible for paying for such benefits, even if they were no longer contractually obligated to pay into the benefit funds. The retroactive scope of this enactm ent, especially as applied to plaintiff Unity (eleven ye ars), approaches the edge of permissible legislative acti on, but we cannot say that the law is beyond the legislativ e power.

We also decline to find a compensable taking on the ground that the Coal Act will put the plaintiffs ou t of business, because it is contrary to the reasoning o f a majority of the Supreme Court in Eastern. Moreover, granting relief whenever a plaintiff could credibly argue that it would be driven out of business by a regulation would create major difficulties in evaluating the constit utionality of much modern legislation. We therefore decline to construe this regulatory burden as a "categorical t aking" analogous to the total destruction of the value of a specific piece of real property.

I. Facts and Procedural History

A. History of the Coal Act

1. Early Agreements in the Coal Industry

The history behind the Coal Act has often been disc ussed in the pages of the federal reporters. See, e.g. , Eastern, 118 S. Ct. at 2137-42 (plurality). Briefly, the relevan t facts are as follows: The coal industry has witnessed a serie s of particularly vitriolic labor disputes over the past halfcentury. In 1946, motivated principally by miners' demands for decent health and retirement benefits, the Unit ed Mine Workers of America ("UMWA") called a nationwide str ike. To forestall industrial paralysis, President Truman na tionalized the coal mines. Following the execution of what cam e to be known as the Krug-Lewis Agreement, the government relinquished control of the mines. The UMWA and the Bituminous Coal Operators' Association ("BCOA"), a multiemployer group of coal producers, then execute d the first National Bituminous Coal Wage Agreement ("NBC WA"). The 1947 NBCWA specified terms and conditions of employment in the mines and, among other things,

6extended the Krug-Lewis Agreement by providing heal th

and pension benefits to miners.

A new NBCWA signed in 1950 provided that, in exchan ge for union concessions, the BCOA would create a welf are and retirement fund financed by a per ton levy on c oal mined by signatory coal producers. The 1950 Fund wa s designed to receive employer contributions and to u se the funds to provide health benefits to current and ret ired miners (and, in certain cases, to family members). Several more NBCWAs were signed over the next two decades. None of them altered this basic benefits format, althoug h beginning in 1971 the UMWA and the BCOA were given power over the levels of benefits provided under th e 1950 Fund, removing discretion formerly vested in the Tr ustees of the Fund. See In re Chateaugay Corp., 53 F.3d 47 8, 482 (2d Cir. 1995).

2. The 1974 Agreement

In 1974, demographic changes that had increased the cost of benefits, along with the passage of the Emp loyee Retirement Income Security Act ("ERISA"), 29 U.S.C. S 1001 et seq., led to a restructuring of the 1950 Fund. I n its place, the 1974 NBCWA established four separate multiemployer plans, two covering pension benefits and two dealing with nonpension benefits. The nonpension en tities were the 1950 Benefit Plan, which provided health b enefits to coal workers who retired before 1976, and the 19 74 Benefit Plan, which covered those who retired on or after January 1, 1976. The 1974 NBCWA explicitly guarante ed that miners and their dependents would retain their health services cards--which gave them access to Plan heal th benefits--"for life." No such express warranty had appeared in any earlier agreement. We will discuss these cha nges in

more detail below. See infra Part III.

3. The 1978 Agreement

In response to continued labor unrest and unresolve d concerns over benefits, the 1978 NBCWA incorporated a new provision assuring health care for "orphaned" m iners (that is, miners whose employers had abandoned eith er the coal industry or the UMWA), together with complemen tary "guarantee" and "evergreen" provisions. The "guaran tee"

7clause obligated signatories to make sufficient

contributions to maintain benefits at the negotiate d levels during the period of agreement, whereas before ther e had been no promise to maintain any particular benefit level. The "evergreen" clause required signatories who con tinued to mine coal to continue making benefit contributio ns for as long as such contributions were required by future NBCWAs, regardless of whether a particular operator actually signed those subsequent NBCWAs. Additional ly, the 1978 NBCWA for the first time defined specific health benefits that would be covered, a practice that con tinued in later agreements. Finally, for miners leaving cover ed service on or after January 1, 1976, primary responsibility for retiree health care coverage was shifted from the U MWA multiemployer system to individual coal companies, with the 1974 Plan retained as an "orphan" plan for reti rees whose former employers went out of business.

4. The Coal Commission

The economic problems that prompted the remedial

measures in the 1974 and 1978 NBCWAs continued to plague the industry. In particular, the cost of hea lth care rose steeply throughout the 1980s, the number of or phaned miners increased dramatically as more and more empl oyers left the industry, and an aging population swelled the retired miners' ranks. By 1990, contributions from a shrinking number of coal producers proved insuffici ent to fund the four benefit plans, and those plans were a wash in

red ink.

The UMWA struck the Pittston Coal Company for nearl y 11 months in 1989-90. The Secretary of Labor interv ened, brokered a rapprochement, and, as part of the negot iated settlement, set up a commission to study the indust ry's problems and recommend ways of rejuvenating the ben efit plans. The Coal Commission issued its report in lat e 1990. Congress's response to the commission's suggestions took

the form of the Coal Act. The Act folded the 1950 a nd 1974 Plans into a single UMWA-sponsored entity (the Comb ined Fund) and wove an elaborate tapestry designed to en sure that all retirees who were eligible to receive heal th benefits from the preexisting Plans would obtain them from t he Combined Fund. The Act also created the 1992 Plan, which

8was designed to provide benefits to eligible retire es and

their dependents who were not beneficiaries of the Combined Fund and who were not receiving health car e coverage directly from former employers.

The linchpin of the statutory scheme is contained i n section 9706 of the Coal Act, which directs the ass ignment by the Social Security Commissioner of every eligib le beneficiary to a "signatory operator" who is still "in business." The signatory operator ("SO") must have signed at least one NBCWA and must pay premiums to the Combined Fund sufficient to defray the estimated annualized health care costs for its assigned benef iciaries. See 26 U.S.C. S 9704.1 A retired miner is assigned first, if possible, to the SO that both signed the 1978 (or a ny subsequent) NBCWA and also employed him for at leas t two years more recently than any other SO. See id. S 97 06(a)(1). If no SO fits that description, the retired miner i s assigned to the 1978 (or any subsequent) SO that employed hi m most recently for any length of time. See id. S 97 06(a)(2). If the retired miner never worked for a 1978 or subseq uent SO that is still in business, he is assigned to the SO that employed him for the longest period of time. See id

. S 9706(a)(3).

B. The Parties

1. Unity

Unity is a corporation owned by members of the Jami son family. Unity is covered by the Coal Act as a "rela ted person" to several companies--formed by members of the Jamison family--that were ultimately absorbed into Unity. One, South Union-PA, had been mining coal since 192 3 and signed the 1947 NBCWA and amendments thereto through 1961. South Union-WVA, which took up mining when South Union-PA left off, signed the 1974, 1978 , and 1981 NBCWAs, although a bankruptcy court granted it

___________________________________________________ ______________

1. The law also provides that SOs must pay an addit ional amount, proportional to the number of initial assignments, to provide coverage for orphaned retirees. However, it has apparently not p roven necessary to assign SOs responsibility for orphaned retirees bec ause of the availability of other funding sources. See Eastern, 118 S. Ct. a t 2142 n.3 (plurality).

9leave to reject the 1981 NBCWA in 1981. Yet another

Jamison company, Stewart Coal & Coke Co., paid into the UMWA benefit funds from 1949 to 1958; when it cease d operations, it stopped paying into the benefit fund s, but its former employees continued to receive benefits from the Funds. Other related companies signed NBCWAs and pa id

into UMWA benefit funds at various times from the 1 960s through the 1970s.2

Unity currently owns a small commercial building an d parking lot in Greensburg, Pennsylvania and employs two individuals, a corporate officer who earns $7,000 p er year and a janitor. Its annual gross revenues are approx imately $50,000 and its net worth is approximately $85,000. Unity was assigned 74 beneficiaries of the Combined Fund and owed the Fund, as of September 30, 1995, over $440, 000 in unpaid premiums. In addition, Unity was assigned 2 beneficiaries of the 1992 Plan and, as of January 3 1, 1996, owed that Fund over $18,000. The assignment was bas ed upon Unity's prior employment of 63 miners, who had worked for Unity and its related companies, on aver age, for ten years.3 Unity represents that its Coal Act liab ilities are over six times its total assets and that, if forced to pay, it will be bankrupted. These representations are not d isputed by the Trustees.

2. B&T

B&T was assigned 1544 Combined Fund beneficiaries and some twenty 1992 Plan beneficiaries. B&T had be en,

___________________________________________________ ______________

2. While attempting to distance itself from liabili ty, Unity and its

owners have not ignored the benefits of close corporate re lationships. Although we do not suggest that it acted with bad faith, we note that Unity repaid the Jamison family over $230,000 from promissory no tes given by Stewart Coal & Coke, which merged with Unity in 196 9 (over $150,000 on those notes was paid in 1992 and 1993), and that Unity sheltered $288,000 in income from federal income tax because of net operating loss carryover from South Union-WVA's bankruptcy. A t all events, Unity has never presented any legal challenge to the "rel ated persons" provision of the Act, and hence its obligations mus t stand or fall regardless of how Unity was assigned the beneficiar ies.

3. Thirty miners had worked for the companies for m ore than ten years and thirteen for more than fifteen years.

10from 1905 on, engaged in large scale coal productio n until

closing its last mining operation in 1986. It termi nated an agreement to manage a mine effective January 1, 198 7. At the peak of its coal mining operations from the 197 0s to the1980s, B&T employed approximately 1100 UMWArepresented miners. B&T was a party to the 1971, 19 74, 1978, and 1981 NBCWAs through its membership in the coal operators' association. Although it withdrew f rom the association prior to the 1984 NBCWA, it later agree d to be bound by that NBCWA on a "me-too" basis, adhering t o the Agreement's requirements. Its participation in the NBCWA terminated in 1988. At that time, B&T discontinued its individual employer plan and its retirees were left to be covered by the 1974 Benefit Plan (the "orphan" plan ).

B&T's activities are currently confined to leasing its coal reserves, paying workers' compensation and black lu ng claims, and treating acid mine drainage from its cl osed

mines. B&T claims that if it is forced to continue paying its Coal Act liabilities, all of its assets will be con sumed in less than two years, and this is not in dispute.

C. Procedural History

The plaintiffs challenge the constitutionality of t he Coal Act as it applies to them (S 9706(a)(1) & (2)). Bot h moved for preliminary injunctions to prevent the Trustees of the funds to which the plaintiffs are required to pay under t he Coal Act from enforcing the Coal Act against them during the pendency of these cases. B&T withdrew its motion fo r a preliminary injunction, and the District Court gran ted Unity's motion for a preliminary injunction. The co urt rejected Unity's Due Process Clause argument but gr anted the requested interim relief on Takings Clause grou nds. See Unity Real Estate Co. v. Hudson, 889 F. Supp. 818 ( W.D. Pa. 1995). All parties moved for summary judgment. The District Court, reconsidering its views of the meri ts, granted the defendants' motions for summary judgment and de nied Unity's and B&T's motions for summary judgment. Uni ty and B&T appeal.

11II. The Eastern Decision

A. The Rationales

Eastern Enterprises was involved in coal mining unt il 1965, and signed every NBCWA from 1947 until 1964. It was assigned liability for over 1000 miners, based on Eastern's status as the pre-1978 signatory for whom the miners had worked for the longest period of time; i ts total liability was estimated to be between $50 and $100 million. Eastern sued, claiming that the Coal Act was

unconsititutional.

Four Justices concluded that the Act was a compensa ble taking as to Eastern. In practical terms, this mean t that the Act was unconstitutional: Compensation for the taki ng would be the return of sums required to be paid by the Act. Although the law did not work a physical invasion, the plurality noted that economic regulation can consti tute a taking. See Eastern, 118 S. Ct. at 2146 (plurality) . The plurality looked to three factors of particular sig nificance in determining whether a taking had occurred: the econ omic impact of the regulation, its interference with rea sonable investment-backed expectations, and the retroactive character of the government action. See id. (plural ity).

The plurality examined several previous cases to se t the stage for its analysis. It looked to Usery v. Turne r Elkhorn Mining Co., 428 U.S. 1 (1976), where the Court uphe ld provisions of the Black Lung Benefits Act, which re quired coal operators to compensate miners and their survi vors for death or disability due to mining-related black lun g disease. The Eastern plurality explained that Usery upheld that law because, even though "stricter limits may apply to Congress' authority when legislation operates in a retroactive manner," holding the companies liable f or black lung benefits was justified as a rational measure t o spread the costs of black lung to companies that profited from the miners' labor. Eastern, 118 S. Ct. at 2147 (plurali ty).

Next, the plurality considered Pension Benefit Guar anty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984), wher e the Court upheld the Multiemployer Pension Plan Amendme nts Act (MPPAA), which was enacted to supplement ERISA. ERISA had created the Pension Benefit Guaranty

12Corporation to exercise discretionary authority to pay

benefits when a multiemployer pension plan terminat ed. The Corporation also had authority to require emplo yers who had contributed to the plan during the five yea rs before its termination to pay for an amount proport ional to their share of contributions to the plan during tha tfiveyear period. As ERISA's effective date approached, many multiemployer pension plans were in a precarious po sition, and so Congress enacted the MPPAA, which imposed a payment obligation upon any employer withdrawing fr om such plans. The obligation depended on the employer 's share of the plan's unfunded vested benefits.

The MPPAA applied retroactively to withdrawals with in the five months preceding its enactment. The Easter n plurality explained that the Court upheld the MPPAA because retroactive liability prevented employers f rom taking advantage of a lengthy legislative process b y withdrawing before Congress revised the law. The retroactivity in Gray, the Eastern plurality emphas ized, was short, and limited to the needs generated by the de lays inherent in the legislative process. See Eastern, 1 18 S. Ct. at 2147 (plurality).

The plurality then reviewed Connolly v. Pension Ben efit Guaranty Corp., 475 U.S. 211 (1986), where the MPPA A was again at issue, this time as the subject of a t akings challenge. The Eastern Court explained that Connoll y upheld the law despite the employers' expectations that they would not have to pay, because "legislation is not unlawful solely because it upsets otherwise settled expectations." Eastern, 118 S. Ct. at 2148 (plurali ty). Even though the employers in Connolly had contractual agreements expressly limiting their contributions t o the pension plan, the Court held that their express con tracts could not impair Congress's authority. See Connolly , 475 U.S. at 223-24. The Connolly Court noted that the M PPAA did not work a physical invasion. Although the econ omic impact of the law was substantial, the amount was d irectly related to the previous relationship between the em ployer and its pension plan, and therefore the economic im pact factor did not establish that a taking had occurred . See id. at 225. Moreover, there was no interference with re asonable

13investment-backed expectations, because at the time the

MPPAA was enacted, prudent employers had notice tha t pension plans were regulated and that withdrawal mi ght trigger additional financial obligations. See id. a t 227.

The third time was not the charm for the MPPAA's challengers in Concrete Pipe & Products, Inc. v. Co nstruction Laborers Pension Trust, 508 U.S. 602 (1993). In tha t case, the employer focused on the fact that its contractu al commitment to its pension plan did not impose withd rawal liability. The Court rejected the claim that the co ntract made a difference and reiterated its holding that t here was no taking as long as an employer's liability would generally not be " `out of proportion to its experience with the plan.' " Id. at 645 (quoting Connolly, 475 U.S. at 226). Alt hough the employer's liability under the MPPAA exceeded ERISA 's original cap on withdrawal liability, the Court fou nd "no reasonable basis to expect that [ERISA's] legal cei ling would never be lifted." Id. at 646. The employer voluntar ily negotiated a plan within ERISA's scope, making its burden under the MPPAA neither unfair nor unjust. See id. at 646-

47.

The Eastern plurality summarized this line of cases as follows:

Our opinions in Turner Elkhorn, Connolly, an d Concrete Pipe[ ] make clear that Congress has conside rable leeway to fashion economic legislation, incl uding the power to affect contractual commitments betw een private parties. Congress also may impose re troactive liability to some degree, particularly where it is "confined to short and limited periods requi red by the practicalities of producing national legisla tion." Our decisions, however, have left open the possi bility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited cl ass of parties that could not have anticipated the liabilit y, and the extent of that liability is substantially di sproportionate to the parties' experience.

Eastern, 118 S. Ct. at 2149 (plurality) (citation o mitted). The plurality held that the Coal Act, as applied to Eastern, presented such an extreme case.

14On the economic impact factor of the takings test, the

plurality found "no doubt that the Coal Act has for ced a considerable financial burden upon Eastern," betwee n $50 and $100 million. Id. (plurality). The plurality re ferred to previous cases requiring that liability be proporti onal to a party's experience with the object of the challenge d legislation. In the pension plan cases, the parties had voluntarily negotiated and maintained pension plans , at least for a while, and consequently their statutori ly imposed liability was linked to their own conduct. See id. at 2149-50 (plurality). Eastern did not participate in the neg otiations for the 1974 or subsequent NBCWAs, nor did it agree to make contributions thereunder. "[The 1974, 1978, an d subsequent agreements] first suggest an industry commitment to the funding of lifetime health benefi ts for both retirees and their family members." Id. at 215 0 (plurality).

The plurality then concluded that the Coal Act substantially interfered with Eastern's reasonable investment-backed expectations. See id. at 2151 (pl urality). It reasoned that retroactivity is generally disfavo red in the law, and that the length of the period of retroacti vity and the extent of Eastern's liability raised substantia l questions of fairness. See id. at 2152 (plurality). Finally, the plurality found the nature of the government action to be qui te unusual, because the liability imposed was substant ial, based on conduct thirty to fifty years in the past, and unrelated to any commitment Eastern made or injury it caused. See id. at 2153 (plurality).

The plurality declined to reach Eastern's substanti ve due process argument, although it noted that takings an d due process analyses are often correlated. See id. (plu rality); see also Connolly, 475 U.S. at 223. The plurality reite rated the Court's past concerns about using the "vague contou rs" of the due process clause to nullify laws. Eastern, 11 8 S. Ct. at 2153 (plurality) (citation omitted). Justice Tho mas agreed with the plurality's Takings Clause analysis but wr ote separately to reaffirm his belief that the Ex Post Facto Clause would also apply to Eastern's predicament. S ee id. at 2154 (Thomas, J., concurring).

15Justice Kennedy concurred in the judgment, providin g

the critical fifth vote to strike the law down as a pplied to Eastern. He found takings analysis inapplicable: "T he Coal Act imposes a staggering financial burden on the pe titioner . . . but it regulates the former mine owner withou t regard to property. It does not operate upon or alter an i dentified property interest, and it is not applicable to or m easured by a property interest." Id. at 2154 (Kennedy, J., con curring). Instead, he emphasized the law's distaste for retro activity and found that the Coal Act's extreme retroactivity violated due process as applied to Eastern. See id. at 2158- 59 (Kennedy, J., concurring). When the Court upheld retroactive legislation in the past, he noted, the statutes at issue were "remedial, designed to impose an actual, measurable cost of [the employer's] business which the employer had been able to avoid in the past." Id. a t 2159 (Kennedy, J., concurring) (citation and internal qu otation marks omitted) (alteration in original). Justice Ke nnedy concluded that "[s]tatutes may be invalidated on du e process grounds only under the most egregious of circumstances. This case represents one of the rare instances in which even such a permissive standard has been violated." Id. (Kennedy, J., concurring).

Four Justices dissented, finding neither a taking n or a due process violation.

B. Drawing Instruction from Eastern: Does It Contro l This

Case?

The splintered nature of the Court makes it difficu lt to distill a guiding principle from Eastern. There are five votes against the plurality's Takings Clause analysis. Ho wever, Justice Kennedy's substantive due process reasoning is not a "narrower" ground that we might take to constitut e the controlling holding. There is a fundamental concept ual difference between a takings claim and a substantiv e due process claim. If the government pays just compensa tion, it may take property for public use under the Takings Clause. Due process protections, by contrast, define what t he government may not require of a private party at al l. It is the difference between a liability rule and a prope rty rule. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of th e

16Cathedral, 85 Harv. L. Rev. 1089 (1972); Thomas W.

Merrill, The Economics of Public Use, 72 Cornell L. Rev. 61, 66 (1986). To be sure, in this case the result of t he two claims would be the same because the only potential taking is the imposition of a monetary obligation, but nei ther constitutional ground is a more limited version of the other.

Amici, other former coal companies, submit that the holding of Eastern is that employee benefits fundin g legislation is unconstitutional if it imposes subst antial retroactive liability on selected employers, and if that liability is unrelated to injuries caused or promis es made by those employers. While this may be reasonably accur ate in a general sense, it does not provide guidance for determining how substantial is too substantial or h ow tight the fit between parties' past acts and the liabilit y imposed on them must be. Nor does it help define an interse ction between substantive due process and takings law, as the word "unconstitutional" is here being used to cover , if not a multitude of sins, at least two.

Eastern, therefore, mandates judgment for the plain tiffs only if they stand in a substantially identical pos ition to Eastern Enterprises with respect to both the plural ity and Justice Kennedy's concurrence. See Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 124 6, 1254- 55 (D.C. Cir. 1998) [ABC, Inc.] (reaching the same conclusion about Eastern). In addition, we are boun d to follow the five-four vote against the takings claim in Eastern, although we will consider plaintiffs'"cate gorical takings" claim, not presented in Eastern, in greate r detail

infra Part IV.

Because the plaintiffs signed NBCWAs in 1974 and thereafter, they are factually distinguishable from Eastern Enterprises. Language in the plurality and the conc urrence suggesting that expectations fundamentally changed after 1974 supports our conclusion. See Eastern, 118 S. C t. at 2150 (plurality) ([The 1974, 1978, and subsequent agreements] first suggest an industry commitment to the funding of lifetime health benefits for both retire es and their family members."); id. at 2159 (Kennedy, J., concurring); see also id. at 2161 (Stevens, J., dis senting) (stating that the miners' and operators' "implicit agreement

17was made explicit in 1974"). Although we recognize that the

Court was not presented with argument focused on po st1978 signatories and thus may not have had before i t all the available evidence about later contracts, that very distinction compels the conclusion that Eastern is not on

all fours with the case before us.

To the extent that Eastern embodies principles capa ble of broader application, we believe that due process an alysis encompasses the relevant concerns. We must identify a set of calipers with which to evaluate the challenged p rovisions of the Coal Act, and we believe that the relevant measurement is the extent of the gap between the co al companies' contractual promises to the Funds and th e requirements of the Coal Act. In making our decisio n, we first give deference to Congress's determination of the problem to be addressed, and then ask whether Congr ess's solution comports with fundamental principles of du e

process.

III. Retroactivity and Due Process

A. The Standard of Review

The standard of review when a substantive due proce ss violation is alleged is forgiving; it bars only arb itrary and irrational congressional action. At the same time, our legal system has a long-standing and well-justified dista ste for retroactive laws, because of their heightened poten tial for unfairness. See, e.g., Eastern, 118 S. Ct. at 2158 (Kennedy, J., concurring) (discussing our "singular distrust of retroactive statutes"); Bowen v. Georgetown Univ. H osp., 488 U.S. 204, 208 (1988).

The situation is not unlike that faced in Turner Broadcasting System, Inc. v. Federal Communications Commission, 117 S. Ct. 1174 (1997). In Turner, a ca se involving a First Amendment challenge to Congress's regulation of cable systems, the Court applied inte rmediate scrutiny and required substantial evidence justifyi ng Congress's conclusion that regulation was necessary , but nonetheless emphasized the importance of deference to Congress:

18Our sole obligation is "to assure that, in f ormulating its

judgments, Congress has drawn reasonable inf erences based on substantial evidence." . . . [S]ubs tantiality is to be measured in this context by a standard more deferential than we accord to judgments of a n administrative agency. We owe Congress' find ings deference in part because the institution "i s far better equipped than the judiciary to `amass and ev aluate the vast amounts of data' bearing upon" legislat ive questions. This principle has special signif icance in cases, like this one, involving congressiona l judgments concerning regulatory schemes of inherent co mplexity and assessments about the likely interaction of industries undergoing rapid economic and technological change. Though different in de gree, the deference to Congress is in one respect akin to deference owed to administrative agencies be cause of their expertise. This is not the sum of the matter, however. We owe Congress' findings an additi onal measure of deference out of respect for its authority to exercise the legislative power. Even in the realm of First Amendment questions where Congress mus t base its conclusions upon substantial evidence, d eference must be accorded to its findings as to the h arm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legisla tive authority to make predictive judgments when enacting nationwide regulatory policy.

Id. at 1189 (citations omitted).

While we are not applying a First Amendment test to this due process claim, we consider Turner instructive i n a situation such as this, where both careful scrutiny of the retroactivity involved and deference to the legisla ture's judgments about cognizable harms and appropriate

remedies are in order. We must decide whether suffi cient evidence exists to support Congress's judgment that post1978 signatories of NBCWAs could justly be charged with responsibility for retirees' health benefits, based on the promises they made to coal miners and on the effect s of their departure from the industry on the Funds. See also Concrete Pipe, 508 U.S. at 639 (Congress's judgment

19receives deference even when its retroactive soluti on to a

problem has some weaknesses). We will then evaluate whether it was rational for Congress to legislate t o close the gap between the coal companies' promises and their contractual obligations, taking into account the re troactivity

of the law.

B. Does the Evidence Support Congress's Conclusion that the Coal Companies Should Be Held Responsible?

1. The Relationship Between Benefits and Work Performed by Miners

Before we address the problems occasioned by the ma ss departure of coal companies from the industry in th e 1980s and the expectations created by the NBCWAs, we must first dispose of the plaintiffs' argument that the Coal A ct is unjustified because it charges them with financial responsibility for non-coal-mining-related health p roblems.4

The plaintiffs submit that their liability is disproportionate to their actual responsibility bec ause they are required to pay for miners' dependents and for all health conditions, however unrelated to mining work . Thus, they conclude, their liability does not depend in a ny rational way on benefits they received from the min ers' work in the mines. That the company may be responsi ble

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4. The plaintiffs further argue that there is no re asonable relationship between their potential liability and the former em ployment relationships; they are responsible for the miners' dependents even if the miners only worked for them a day. This argument is skewed. In fact, the miners for which the plaintiffs are responsible worked for the plaintiffs, on average, for many years. There is no evidence in the record to suggest that the plaintiffs' hypothetical ever o ccurred; instead, the evidence indicates that Congress correctly found th at many beneficiaries were entitled to benefits based on miners' long yea rs of service with particular companies. Furthermore, one day of work would not qualify a miner for benefits under the statute, since a miner must work for twenty years in the industry or be disabled in the course of employment to qualify for benefits. See 26 U.S.C. S 9703(f); In r e Chateaugay, 53 F.3d at 489. In combination with the statutory scheme of assigning

beneficiaries to the SO for whom a covered miner wo rked longest, this initial eligibility requirement guards against the disquieting result posited by the plaintiffs.

20for a miner's entire family does not make the burde n

unrelated to past benefits, however. While it is tr ue that a miner's virility may have little to do with his pro ductivity, the post-1978 agreements clearly provided for famil y coverage; when those agreements were signed, the companies could predict, with some actuarial reliab ility, their responsibilities for family benefits. Coverag e for dependents was the price of labor peace, and the companies received a benefit from the promise of th at coverage. See Nobel, 720 F. Supp. at 1178.

Proportionality does not require that the burdened parties have physically injured the beneficiaries o f a retroactive law. The Eastern plurality relied on a

concatenation of circumstances to find a lack of proportionality: First, the benefits were not relat ed to workrelated injuries, and, second, the benefits were no t related to anything Eastern Enterprises ever promised. In U sery, the black lung benefit case, only the first factor was present and the law was upheld as proportional, while in Co nnolly only the second factor was present and the law was also upheld. Those cases demonstrate that the necessary proportionality may be of either type, and there is no need for both to be present. The argument to the contrar y limits the coal companies' responsibility for their past a ctions to physical events. It makes more sense to recognize t he relevance of the companies' promises and negotiatio ns with the miners, especially since the NBCWAs were just a s necessary to the companies' continued operations as blasting or digging.

2. Responsibility for the Funds' Instability

The defendants argue that B&T's and Unity's liabili ty to the Funds is proportional to their general experien ce in the coal industry. The companies have only been assesse d liability based on the miners they actually employe d, and those miners' dependents. The Eastern plurality con sidered the former employment relationship alone insufficie nt because the employers had not promised lifetime ben efits, at least until 1974, years after Eastern left the i ndustry. See Eastern, 118 S. Ct. at 2150 (plurality). Unlike Eastern, however, Unity and B&T, as BCOA members, at some points in time negotiated for and adhered to the ve ry

21agreements that established the benefit funds at is sue. Like

the employers in Concrete Pipe and Connolly, their liability is linked to their voluntary negotiation of a benef it plan, even though Congress retroactively increased the co sts of that negotiation. See Eastern, 118 S. Ct. at 2149-5 0 (plurality).

Moreover, it can credibly be contended that the dep arture of companies such as Unity's subsidiaries and B&T h elped to create the financial crisis in the plans that ul timately led to the Coal Act. When B&T, along with several other employers, left the industry, litigation ensued. Se e United Mine Workers v. Nobel, 720 F. Supp. 1169 (W.D. Pa. 1989), aff 'd, 902 F.2d 1558 (3d Cir. 1990). As a conseque nce, the B&T retirees' benefits became funded by the 1974 Pl an for orphaned miners. After these events, the Plan had t o borrow funds and remaining employers were required to increase their contribution rates to make up the sh ortfall. Similarly, when South Union-WVA declared bankruptcy , it informed the Funds that it was no longer in busines s and would no longer provide health benefits for its ret irees. As Mr. Jamison contemplated when he notified the Trust ees that South Union-WVA had shut down, see J.A. at 170 , the 1974 Fund was forced to take responsibility for tho se retirees. See Schifano v. United Mine Workers 1974 Benefit Plan & Trust, 655 F. Supp. 200 (N.D. W. Va. 1987) (litigation arising out of South Union-WVA's bankru ptcy). Thus, the plaintiffs' acts increased the burden on the Fund, contributing to its overstressed state, at least to some degree.

Although the Fund may, as plaintiffs argue, have be en financially stable when the plaintiffs left the ind ustry, it was surely foreseeable that departures would lead t o instability, given the benefit funding structure un der the NBCWAs. While the plaintiffs contend that the benef it funds only became unstable after the plaintiffs lef t the industry and there were changes in the contribution levels required from coal operators who remained in the in dustry,

it was also foreseeable that those contribution lev els could change, and it was the NBCWAs to which the plaintif fs adhered that initially created a system vulnerable to such changes. It was thus rational to conclude that oper ators in

22this position should bear some responsibility for t he costs

of the corrective legislation. "It is surely proper for Congress to legislate retrospectively to ensure that costs o f a program are borne by the entire class of persons that Congr ess rationally believes should bear them." United State s v. Sperry Corp., 493 U.S. 52, 65 (1989).

The plaintiffs argue that holding them responsible for the benefit funds' financial instability because they l eft the coal industry would obligate every operator to remain in the industry no matter how unprofitable mining became, which amounts to an "erosion taking." We disagree, since this is simply a variant of the total takings claim that we reject below. The law does not require the plaintiffs to s tay in any business, which was a necessary element of all the prior "erosion taking" cases. See, e.g., Brooks-Scanlon C o. v. Railroad Comm'n, 251 U.S. 396, 399 (1920) (legislat ure cannot require a company to continue doing business

, though it may require the company to fulfill its le gal obligations if it chooses to continue operations). Instead, the Coal Act merely recognizes that all acts have consequences, and that sometimes it is not permissi ble for a company simply to walk away, leaving its former employees in the lurch.

In ABC, Inc., the Court of Appeals for the D.C. Cir cuit relied heavily on the distinction between pre-1974 participation in the coal industry and post-1974 participation. The court found the distinction rele vant for two reasons: the post-1974 agreements began the exp licit promises of lifetime benefits, a matter we take up below, and also created a funding structure that allowed ( or even induced) companies to leave the industry and slough off the burden of their retirees' benefits on the remaining companies. Before 1974, a company that left the ind ustry did not create any obligations on the part of other companies to increase contributions to the benefit funds, but after 1974 that changed. Judge Silberman reason ed persuasively:

[I]t is surely rational for the Congress to expect that the member companies' failure to contribute whil e their

retirees received benefits contributed to th e underlying crisis that the plans faced in the late 1980 s. Although

23the coal contractors may not have been the d ominant

cause of that underfunding, legislation need not burden the most responsible party to survive rational

basis review.

ABC, Inc., 156 F.3d at 1255-56.

ABC, Inc. also found that Justice Kennedy's additio nal concern that liability imposed based on a past empl oyment relationship should be "remedial" was satisfied for employers who, unlike Eastern, withdrew from the in dustry after the 1974 agreements. Such employers "withdrew from their prior commitment to contribute to the funds a t precisely the point in time . . . at which the bene fit obligation dramatically expanded, and therefore `contributed to the perilous financial condition of the 1950 and 1974 plans which put the benefits in jeopardy.' " Id. at 1257 (quoting Eastern, 118 S. Ct. at 2159 (Kennedy, J., concurring)).

Unlike Eastern, Unity and B&T, as BCOA members, participated in the negotiations that created the p ost-1978 funding structure. They benefited from the NBCWAs b y obtaining labor peace. Although the contract allowe d the companies to unload their obligations to the retire es onto the Trustees, they should reasonably have anticipat ed that such a strategy would threaten the Funds and might well prompt a congressional response. We cannot say that it was irrational for Congress to charge the miners' f ormer employers with the costs of their benefits, when th e miners qualified for lifetime benefits from the Trustees b ecause of their former employment (we expand on this point in fra) and the employers' departure from the industry cont ributed to the problem confronting the Trustees.

B&T and Unity urge that they are not responsible fo r most of the burden on the Funds. However, B&T was a large employer, whose departure from the industry a dded over a thousand beneficiaries to the Funds' "orphan s," and its individual impact was therefore significant. In addition, Unity may be held partially responsible because, th ough its individual contribution to the problem was small, t he aggregate effects of its actions and parallel actio ns by other companies contributed to the problem. Congress may

24reasonably include all of the parties whose acts, t aken

together, gave rise to a problem, even if the indiv idual

contributions of each are small. Cf. Wickard v. Fil burn, 317 U.S. 111, 127-28 (1942) (applying the same reasonin g to Congress's Commerce Clause power).

3. The Background of Government Regulation

We consider the background of government regulation significant as well. The coal industry has been hea vily regulated for decades, including the government-imp osed 1948 Krug-Lewis Agreement, which created the basic health benefits structure. The companies had no reasonable expectation that the government would not expand it s regulation of health benefits in the coal industry, given the history of labor unrest and government intervention . See 136 Cong. Rec. S17814 (daily ed. Oct. 27, 1990) (st atement of Sen. Glenn) (containing Congressional Research S ervice report on the extensive history of federal interven tion into

the health status and benefits of coal workers and into labor relations in the coal industry more generally ).5

The coal operators were also aware of the growing number of government requirements that vested benef its be paid, whether or not an employer was contractually obligated to pay for them, as the industry's respon se to ERISA indicated. The situation is thus analogous to those in Connolly and Concrete Pipe, in which the Court f ound that, in light of the history of federal pension re gulation, employers could not reasonably assume after 1978 th at their obligations to pension funds would never exce ed the specific terms of their contracts, see Connolly, 47 5 U.S. at 227, nor could they reasonably assume that Congress would not increase the statutory cap on ERISA withd rawal liability, see Concrete Pipe, 508 U.S. at 646. The parties were well aware that pension plans could subject em ployers to retroactive liability in cases of underfunding, and could

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5. Indeed, amicus LTV was the specific target of at least one bill to

mandate that it continue to fund health benefits fo r its retired miners as early as 1986. See 132 Cong. Rec. S9879 (daily ed. July 30, 1986) (bill discussed by Sens. Byrd, Dole, Durenberger, Glenn, Heinz, & Specter); id. at E2714 (daily ed. Aug. 1, 1986) (statement of Rep. Rahall).

25have foreseen that Congress might act similarly wit h

respect to health benefits.

4. The Contractual Language

Turning to the expectations created by the contract s, the threshold question is whether we need to distinguis h between explicit and implicit promises of lifetime benefits. Although the plaintiffs concentrate on explicit pro mises, an issue on which their position is strong, we think t hat explicit promises are not necessary in order to jus tify congressional action. The question is what reasonab le expectations the coal companies' actions created. W hile an expectation cannot be reasonable without some found ation in the real world, an explicit representation that the companies would provide lifetime benefits is not re quired, since reasonable expectations may arise from a cons istent

course of conduct as well.

Plaintiffs and amici argue that the coal companies never made any promises, implicit or explicit, or raised any expectations of lifetime benefits. They first point to the text of the NBCWAs, which did not themselves require the coal companies to provide lifetime benefits under all circumstances. They dissect the various contractual provisions and characterize their import as follows : (1) the

health card that miners received for benefits"for l ife" did not guarantee any specific benefits; (2) the"evergr een" clauses only referred to an employer commitment to continue funding benefits, but did not promise anyt hing about the scope of those benefits; (3) the "evergre en" clauses only applied to operators who stayed in the coal business; (4) the contracts allowed benefits to be suspended or reduced; and (5) the guarantee of bene fits lasted only through the term of the agreement. Addi tionally, an UMWA negotiatior testified in the course of othe r litigation that everything was up for renegotiation at the end of a contract and that the parties could have a greed to eliminate benefits entirely. See District 17, UMWA v. Allied Corp., 735 F.2d 121, 126 (4th Cir. 1984), vacated, 765 F.2d 412 (4th Cir. 1985).

It is true that the funding contribution requiremen ts were limited to the life of the agreement, "ending when this

26Agreement is terminated," in 1978 and subsequent

NBCWAs. Yet all of these arguments have the same fundamental weakness, which is that they go to the contract and not to the reasonable expectations tha t might have been created by the contract. The UMWA negotia tor's testimony is a particularly strong example of this: the parties could have agreed to eliminate benefits in any given negotiation, but there was no realistic chance that they would. The defendants do not dispute that the contr acts did not provide for the payments mandated by the Co al Act. If the contracts had so provided, the Coal Act woul d have been unnecessary. The plaintiffs' dissection of the contracts is a brilliant exercise, and were we deciding a cas e on labor and contract law principles the outcome would be cl ear in their favor.6 But this is not an action brought for

contractual violations. We focus our attention inst ead on what conclusions Congress might rationally draw abo ut the parties' relations and expectations, and what it mi ght fairly do to close the gap between the contractual obligat ions of the coal companies and the Funds' actual liabilitie s.

The NBCWAs did not in themselves guarantee that the coal companies would pay for lifetime benefits for retirees and their dependents. There thus is a tenable argum ent that the NBCWAs did not obligate the Trustees of th e Funds to pay lifetime benefits, because the evoluti on of the benefit structure did not indisputably culminate in a lifetime guarantee. Indeed, the former coal compani es have a number of strong arguments, and reasonable people could well disagree about Congress's choice to impo se liability on them. Nonetheless, we conclude that Co ngress could reasonably have reached the conclusions it di d about the expectation of lifetime benefits and about the coal companies' responsibility for the situation in whic h the Funds found themselves after the changes of the 197 0s and

1980s.

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6. However, not all of these arguments are persuasi ve even as a matter of contractual interpretation. As we discuss below, after 1978 health benefits were specified in the contract, and that t he evergreen clause and the health card sections of the agreement did not r escribe the other

sections of the contract does not mean that those s pecifications were

without effect.

27a. Contractual Clarity

The plaintiffs submit that Eastern turned on the fa ct that the relevant NBCWA provisions clearly did not provi de for

lifetime benefits. We believe that this is a subtle but significant "spin" on the plurality's view, which f ound that the obligations imposed on Eastern were unrelated t o its contractual obligations. The plurality noted that, during Eastern's participation in the industry, retirement and health benefits were far less extensive than they l ater became; the benefits were also not vested. Furtherm ore, benefits were subject to alteration or termination with far fewer constraints than those later imposed by the s hift of

control from the Trustees to the BCOA and the UMWA. In fact, entire categories of beneficiaries provided f or under the Coal Act were not part of the older NBCWAs, and"Eas tern could not have contemplated liability for the provi sion of

lifetime benefits to the widows of deceased miners. " Eastern, 118 S. Ct. at 2150 (plurality). All these facts meant that there was no rational relationship between Eas tern's past acts and its Coal Act-imposed obligations.

If Connolly retains any force, as we think it does, the clarity of contractual provisions is far from dispo sitive. Connolly itself involved a contract whose limits we re at least

as clear as those in the contracts at issue here. E ven crystalline contractual provisions, accompanied by wellestablished practice and understandings, can create reasonable expectations extending beyond the four c orners of a contract. Though courts may be unable to enfor ce those expectations, Congress is not so constrained. We believe that our position is bolstered by a careful reading of the Eastern plurality opinion, which did not sugges t that an implicit promise (that is, one not clearly found in the contract) would be insufficient to sustain the Coal Act if that promise had a reasonable basis in actual pract ice or in the penumbra created by contractual promises. Inste ad, the plurality found no evidence of any implied lifetime promise. See Eastern, 118 S. Ct. at 2152 (plurality). Justic e Kennedy, likewise, focused not on the clarity of th e contract but on the lack of a connection between pre-1978 co al operators and retired miners' reasonable expectatio ns and instability in the benefit structure. See id. at 21 59 (Kennedy, J., concurring).

28b. Lifetime Benefits

The plaintiffs argue that the NBCWAs never promised "lifetime benefits," and that the miners' only reas onable expectation based on the NBCWAs would have been tha t any operators who remained in the coal industry and continued to sign agreements would pay for their be nefits indefinitely. From that perspective, the Coal Act retroactively transformed a series of three- or fou r-year commitments into an open-ended, decades-long obliga tion.

The plaintiffs' reading of the agreements is too cr abbed. The 1974 NBCWA has thirteen separate references to

health service cards "for life" or "until death." P laintiffs submit that this simply referred to a health card t hat no one would ever take away but that could be reduced to a worthless piece of paper at any time. However, not only did the 1978 NBCWA have sixteen separate references to coverage "for life" or "until death," it also refer s to an "entitle[ment] to receive health benefits until dea th" in at least one section. 1978 NBCWA, Art. XX, at 116. The plaintiffs submit that this reference was inextrica bly linked to the references to health service cards. We agree , but think that the slippage between lifetime health car ds and lifetime health benefits counsels against the plain tiffs' position: The lifetime health card may just as easi ly be seen as a shorthand reference to lifetime benefits, whic h may be why the parties did not correct (in this carefully negotiated contract) the reference to "benefits until death."7 This language, synonymous with the health card language, appears to reflect the bargaining parties' understa nding that the lifetime provision of health benefits was an absolute requirement for any contract. See Nobel, 7 20 F. Supp. at 1175 (finding that the coal operators unde rstood that lifetime benefit language was crucial to the r atification of any contract and that the BCOA therefore abandon ed its attempt to remove such language).

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7. The plaintiffs also note that the "benefits unti l death" language appears in a provision discussing restrictions on b enefits whenever the beneficiary exceeded the earnings limit. However, t he point of the provision was that the beneficiaries were entitled to benefits during any period that they did not exceed the earnings limits until death.

29We do not rest our decision on the reference to "be nefits

until death"; rather, it is a datum supporting the overall conclusion that the health card was expected to gua rantee

benefits for life. The 1981 and 1984 NBCWAs continu e in the same vein with sixteen references to coverage " for life" or "until death." While we appreciate the force of the plaintiffs' arguments to the contrary, we are persu aded that it would have been reasonable for miners to expect that the "lifetime" health card actually meant that lifetime benefits would be provided to anyone in possession of a heal th card.

Plaintiffs nonetheless argue that the appearance of the phrases "for life" and "until death" in the 1974 an d subsequent agreements does not imply any commitment to provide lifetime benefits. According to them, we sh ould understand the lifetime health card as doing no mor e than serving the valuable administrative function of ens uring portability. At most, the plaintiffs argue, the pos session of a health card merely entitles a retiree to whatever benefits, if any, were available under the NBCWA then in effe ct. The plaintiffs interpret "lifetime" to mean simply that , if an NBCWA were in place, miners could not lose their be nefits after a fixed period of time (a problem that had ar isen in the past when the Trustees cut off retired miners a fter five years or some other fixed period).

This is a strained reading of the terms "for life" and "until death," which refer to persons (the miners and thei r dependents) and not to the continued existence of a n NBCWA. Furthermore, this argument does not aid the plaintiffs much, as NBCWAs were in effect through t he passage of the Coal Act and even to this day, altho ugh the plaintiffs are no longer signatories to them. There is no real-world difference between a lifetime guarantee and a guarantee that lasts while NBCWAs continue to exist

, especially as the guarantee did not depend on any particular employer's continued adherence to the NB CWAs.

The fact that NBCWAs continue is evidence that it w as reasonable to expect them to continue, and thus tha t it was reasonable to expect that a "lifetime" guarantee, e ven one that could theoretically expire if the entire NBCWA system collapsed, was in reality a lifetime guarantee. Cf. D'Amico v. City of New York, 132 F.3d 145, 151 (2d Cir. 1998)

30(reasoning that the occurrence of an event is evide nce that

a decisionmaker was justified in predicting that ev ent).

The plaintiffs further point out that the 1950 and 1974 Plans contained language stating that, if assets be came insufficient, benefits could be suspended or reduce d. The Plans were incorporated into the 1974, 1978, 1981, and 1984 NBCWAs by reference. Moreover, the plaintiffs note that the Plans were subject to modification or amen dment, and there were provisions that would take effect"[i ]n the event of the termination of the 1950 Plan." The pla intiffs

also contend that when miners received health cards , they were specifically told that their benefits were sub ject to amendment or termination "at any time." 1958 Annual Report. Of course, later NBCWAs were designed to li mit the Trustees' authority to do so, by defining the benef its to be provided, by establishing lifetime eligibility for a health card, and by eliminating the Trustees' ability to a lter

benefits without the consent of the union and the B COA

after 1971.

But the NBCWAs always clearly stated that they were in effect for limited terms. The individual employer p lans for

health benefits that were established under the 197 8 NBCWA, like the 1950 and 1974 Plans, had the stated purpose of providing benefits "during the term of t his Agreement." The plaintiffs conflate the issue of wh ether the coal companies' contribution requirements were "lif etime," which they clearly were not under the contract, wit h the issue of whether the contracts provided for lifetim e health

benefits. The lifetime health card was intended to put an end to the Trustees' pre-1974 practices of cutting beneficiaries off if their former employers were de linquent in paying into the Funds or if they had received be nefits for a set period of time. Thus, the Trustees could reas onably be seen as required to pay lifetime benefits to all re tirees and their dependents in possession of a health card; th e contractual terms had the effect of binding the Tru stees to a lifetime commitment, although they did not of the mselves bind the coal companies to the same commitment. 8

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8. The plaintiffs also argue that the Trustees unde rstood that benefits were limited to the term of the agreement. When the 1974 NBCWA

31Despite the plaintiffs' contention that the numerou s

cases holding that "for life" means lifetime benefi ts were wrongly decided, we are unpersuaded that those case s lacked support for their conclusion. See, e.g., In re Chateaugay Corp., 945 F.2d 1205, 1210 (2d Cir. 1991 ); District 29, UMWA v. UMWA 1974 Benefit Plan & Trust , 826 F.2d 280, 282-83 (4th Cir. 1987); Grubbs v. UMWA, 7 23 F. Supp. 123, 128 (W.D. Ark. 1989); Nobel, 720 F. Supp . at 1178.9 The plaintiffs assert that, at all events, E astern throws these cases into doubt. We disagree, because the Supreme Court said nothing about the Trustees' obligations, nor did the Court take up the post-197 8

contracts at all.

Furthermore, contrary to the submission of the plai ntiffs, these lower court cases did analyze the provisions of the contract, recognizing that the Trustees were obliga ted to provide benefits only "during the term of this agre ement," just as the companies were only required to contrib ute during the term of the contract. Rather than ignori ng this temporal language, the decisions found that other l anguage in the contract, combined with testimony from the

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expired on December 6, 1977, the Trustees stopped p roviding health benefits to retired miners, and the subsequently ne gotiated 1978 NBCWA prohibited retroactive funding of such benefits. Th is is significant, but, given that the benefit funds were fundamentally rec onfigured at the same time to focus on individual employers, it woul d have been difficult to deal with those few months retroactively during the transition to the new regime. The short gap necessitated by the delay in negotiating a new contract during bitter labor strife does not dispro ve the general promise

of lifetime benefits in the future.

9. UMWA Health & Retirement Funds v. Robinson, 455 U.S. 562 (1982),

also refers to "lifetime" benefits. See id. at 565- 66. The plaintiffs

argue that NBCWAs were in place at all times relevant to Robinson, and so that case provides no basis for suggesting that benefits would be available in the absence of an NBCWA. However, this argument act ually favors the defendants. We reiterate that we are not construing the contract but deciding what reasonable expectations it might gene rate. In that analysis, the fact that NBCWAs persisted for decade s, although it was always possible that they would expire, favors the defendants, since the long history of NBCWA renegotiation makes the expec tation that benefits

would continue more reasonable.

32negotiators, obligated the Trustees to provide life time

benefits. See District 29, UMWA, 826 F.2d at 282. T hat the contracts may contain contradictory language does n ot, as plaintiffs and amici contend, make any construction requiring lifetime benefits unreasonable; instead, there was evidence pointing in both directions. Just as it wa s not

unreasonable for courts to conclude that the contra cts provided lifetime benefits, it was not unreasonable for Congress to rely on similar evidence, even though C ongress could also reasonably have disagreed. In fact, we c ould even consider such judicial decisions, the earliest of which were referenced in the Coal Commission Report, as d ata justifying Congress's conclusion that lifetime bene fits were promised, since Congress may reasonably look to the findings of a coordinate branch. See Coal Comm'n Re port at 3, 28, 47, 55-56.

The question, then, is not whether the health benef its are truly "for life" but whether the former coal compan ies can justly be associated with the promises of lifetime benefits that by contract run only against the Trustees. The argument is that it was acceptable, by virtue of th e contractual limitations, for companies to walk away and leave the Trustees and the companies remaining in t he coal industry to pay the tab. And it is this underlying claim that we think Congress could rationally reject. In this regard, we reiterate that our obligation is to determine what Congress could reasonably have found.

Congress certainly possessed credible evidence that miners expected those benefits. The Coal Commission , for example, reported to Congress in 1990 that

Retired coal miners have legitimate expectat ions of health care benefits for life; that was the promise they received during their working lives and that is how they planned their retirement years. That co mmitment

should be honored.

Id. at vii. The Commission based its conclusions on substantial evidence, including testimony from many industry participants on both sides of the issue. E ven a dissenting member of the Commission, who was the president of a coal company, acknowledged that the post-

331978 agreements created a promise of lifetime benef its. See

id. at 81 (statement of Commissioner Holsten). 10 A lthough the Coal Act's statutory scheme was proposed nine a nd two years, respectively, after Unity and B&T ceased to be bound by an NBCWA, and that is certainly a significant pe riod of time, we cannot say that it is beyond the pale in l ight of the

lifetime nature of the commitment at issue.

c. Other Contractual Provisions

The negotiations of the 1970s took place in a chang ing legal context, as the Coal Commission's report to C ongress recognized. ERISA made clear that employers who pro mised pension benefits were going to have to give them, a nd when the parties negotiated the 1974 and later agreement s, that idea was certainly in mind. Moreover, starting in 1 974, the new agreements removed the Trustees' discretion to set benefit levels and eligibility standards. See Coal Comm'n Report at 24.

By 1977, anxiety had intensified, and the miners st ruck for nearly four months over, among other things, he alth benefit issues. The federal government intervened t o settle the strike. The 1978 agreement introduced the "ever green"

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10. The conclusions of the Coal Commission Report a re not rendered suspect by Eastern; although the plurality and Just ice Kennedy concluded that Congress could not reasonably decide that pre-1978 signatories were responsible for creating expectati ons of lifetime benefits, it is notable that the Coal Commission never propos ed the "super reachback" provision challenged in Eastern. See Eas tern, 118 S. Ct. at 2141 (plurality); Coal Comm'n Report at 61, 63, Sup p. App. at 420, 422. The Commission's proposal provided for liability un der what became S 9706(a)(1) and S 9706(a)(2), which only apply to post-1978 signatories, while S 9706(a)(3) was added late in the legislativ e process. See J. Atwood Ives, Federal Document Clearing House Congre ssional Testimony, House Ways & Means Oversight, Coal Worke rs Retirement Benefits, June 22, 1995. The Coal Commission'sfindi ngs remain persuasive evidence from which Congress could concl ude that signatory operators remaining in the coal industry after 1978 created a reasonable expectation of lifetime benefits among miners and t heir families. See also 138 Cong. Rec. S5081, S5082 (daily ed. Apr. 8, 1992 ) (statement of Sen. Boren) (referring to the expectations created by th e 1978 agreement); id.

(statement of Sen. Dole) (same).

34and "guarantee" clauses and rearranged the benefit funds

in major ways. See id. at 26. The evergreen clause only applied to companies that stayed in the coal mining industry. As such, it has no bearing on these plain tiffs except insofar as it expresses an intent by the neg otiators to keep health benefits funded, as the miners expec ted them to be, in the context of growing burdens on NB CWA coal operators.

Under the guarantee clause, signatory employers committed to make the contributions necessary to ma intain the contractually specified benefits throughout the term of the agreement, even if that required an increase in the contribution rates specified at the outset of the c ontract term. This was essentially a shift "from a defined contribution obligation, under which employers were responsible only for a predetermined amount of roya lties, to a form of defined benefit obligation, under which e mployers were to fund specific benefits." Eastern, 118 S. Ct . at 2140 (plurality). The evergreen clause represented a sim ilar effort by the bargaining parties to protect the funding ba se for ongoing health coverage.

The coal companies contend that everyone recognized that, when the contract ended, the benefits would e nd. The 1978 guarantee clause guaranteed benefits and provi ded for increased contribution if necessary only "durin g the term of this Agreement." The defendants respond tha t the "end of contract/end of benefits" equation is not t he end of the story. They argue that it was reasonable for th e miners to expect that the contract would be replaced by an other contract, and then another, and then another, with at least comparable benefits, even if the industry and its participants changed. After all, that is what had t aken place for the past fifty years: the slow but steady expansion of benefits. The NBCWAs, they argue, were negotiate d in a context where the miners believed that, in return f or wage and employment concessions, they would be able to guarantee their futures. In fact, as noted above, t he NBCWAs have endured for decades after the changes o f the 1970s, evidencing the reasonableness of a belief th at the agreements would continue.

35We do not ignore the plaintiffs' history in the ind ustry,

which extended for many decades and ended over thir ty years after Eastern Enterprises left the coal indus try. Unity mined coal for 58 years and B&T for 80. Coal compan ies such as Unity and B&T received benefits from the st eady expansion of health and retirement benefits, includ ing wage concessions and union agreement to mechanization, d uring that period. Their long-term participation made it particularly understandable that miners would expec t that the companies' adherence to promises of lifetime be nefits in

the NBCWAs would be honored.

5. Conclusion

Our review of the evidence suggests that there are several plausible interpretations of the events leading up to the

Coal Act. It could well be the case that former coa l companies are not the most responsible parties in t he deterioration of the health of the benefit funds, b ut Congress could also rationally find that they bore significant responsibility in setting up a structur e that invited operators to abandon mining and shunt the b urden of caring for retirees on other parties. Similarly, it could be

that the contracts did not create a lifetime benefi t obligation on the part of the Trustees, yet Congress had subst antial evidence to the contrary. We will defer to Congress 's judgments on the nature of the problem before it, i ncluding judgments about causation and reasonable expectatio ns. The next question, therefore, is whether Congress's reasonable evaluations of the problem justified the

corrective measures it mandated in the Coal Act.

C. Is the Coal Act a Rational Response to the Probl em Congress Identified?

Given that evidence exists to support Congress's interpretation of the history of the coal industry and the NBCWAs, we must ask whether that evidence is enough to justify a retroactive law of this scope. For the fo llowing reasons, we conclude that the Coal Act's retroactiv ity does not render it irrational in violation of due proces s.

1. The Length of the Retroactivity

The heart of retroactivity analysis is an evaluatio n of the

36extent of the burden imposed by a retroactive law i n

relation to the burdened parties' prior acts. We no te as an initial matter that the length of the retroactivity alone is not dispositive in this case. The retroactivity is sign ificantly less

extensive than that in Eastern. We evaluate retroac tivity not from the time the plaintiffs first signed an indust ry agreement, nor from the time the miners' right to b enefits accrued, but rather from the end of the plaintiffs' contractual obligations to pay for such benefits. 1 1 For Unity, that period is eleven years, and for B&T four years , because B&T was bound by the 1984 NBCWA until 1988. This is substantially less time than the gap between Easter n's exit

from the coal business and the enactment of the Coa l Act, although, at least for Unity, it is still quite lon g.12 We conclude that this degree of retroactivity is not s o extensive as to violate Justice Kennedy's standard, although Unity

offers a close case.13

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11. We choose the expiration of NBCWA obligations b ecause, although covered retirees may have stopped working for the p laintiffs before those dates, the contracts obligated the plaintiffs to co ntinue paying for benefits until those contracts expired and, after 1 978's evergreen clause, until the plaintiffs left the industry. This was no t true of the relevant contracts in Eastern. Thus, the retroactivity exten ds not from the date of the miners' retirement but from the period during w hich the plaintiffs were free of any contractual obligation to pay for benefits.

12. The retroactivity approved in Usery was actuall y much greater in some circumstances. The black lung law was enacted in 1969 and began imposing liability on employers in 1973. Yet benefi ts were given to miners who left mine work as early as 1923. See Use ry, 428 U.S. at 40 n.4 (Powell, J., concurring in part). In addition, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. SS 9601-9657, has an unlimited retrospective temporal reach, which has yet to be invalidated by any court to con sider the issue. See, e.g., United States v. Monsanto Co., 858 F.2d 160, 173-74 (4th Cir. 1988).

13. We focus on Justice Kennedy's explication of th e relevant due process principles because the plurality did not re ach Eastern's due process claim. See Rappa v. New Castle County , 18 F.3d 1043, 1058-61 (3d Cir. 1994) (where "no single approach can be sa id to have the support of a majority of the Court," then "no parti cular standard

constitutes the law of the land" and lower courts a re bound by the result as applied to "substantially identical" cases).

37Instead of relying solely on the length of the retr oactivity,

we assess the relationship of the retroactively imp osed liability to the governmental interests asserted in its defense. See Eastern, 118 S. Ct. at 2159 (Kennedy, J., concurring) (retroactive remedies must bear "a legi timate

relation to the interest which the Government asser ts supports the statute"); id. at 2163 (Breyer, J., di ssenting) ("[A] law that is fundamentally unfair because of i ts retroactivity is a law which is basically arbitrary .").

The plaintiffs argue that retroactivity has only be en upheld in three situations: (1) where the employer continues to operate in the regulated industry afte r the enactment of a retroactive law; (2) when employers would otherwise be able to take advantage of the delays i nherent in the legislative process; and (3) where a worker' s injury or illness is related to his or her work. This categor ization is unsatisfactory. The first category lacks adequate a nalytical foundation. If a law is truly retroactive, applying to conduct completed before the law was enacted, it would seem only marginally relevant that an employer kept doing wha t it had been doing before, for the liability would be b ased on past acts, not post-enactment acts; the continuatio n in the old business would not seem to justify the retroact ivity. If it would be fundamentally unfair to make a business pay for its long-past acts, it would seem equally unfai r to put that business to the choice of leaving its establis hed business or paying for its long-past acts.

We posit a different standard: Where Congress acts reasonably to redress an injury caused or to enforc e an expectation created by a party, it can do so retroa ctively. The ERISA and MPPAA cases establish that Congress m ay retroactively bar employers from giving their emplo yees vested pensions in multiemployer plans and then lea ving those plans to collapse. Those cases did not examin e whether the employers continued to operate the same kind of business as they did when their former employees ' pensions became vested. Our categorization also rec ognizes that workers can be harmed not just by late-appeari ng physical consequences of their jobs but also by an employer's failure to live up to a long-term promis e that formed part of the worker's reasonable expectations on the

38job. Both a promise of benefits and a job-related i llness

have a nexus to the worker's employment, as we disc ussed supra Subsection III.B.1.

2. The Size of the Burden

The amici (other former coal operators) call our at tention to the size of the burden imposed, arguing that, be cause the Eastern plurality found that paying lifetime be nefits imposed a "considerable" burden on Eastern Enterpri ses, by definition the same is true for all other entiti es required to pay benefits under the Coal Act, since the amoun t of the payment per beneficiary is the same under every par t of the law. In Eastern, however, the total amount at issue was between $50 and $100 million, whereas here the tota l cost is well under $1 million to date for Unity and arou nd $2.5 million per year for B&T, an amount that will conti nue to decrease as beneficiaries die. Therefore, the plain tiffs are not in the same situation as Eastern Enterprises.

We will not find a due process violation if the reg ulation is proportional to the harm legitimately addressed by the legislature. Yet the proportionality requirement wi ll only be applied when the harm inflicted by the government i s substantial enough to raise an issue as to whether a violation of due process has occurred. As the total absolute burden imposed by a statute increases, it becomes s impler for a court to determine that the legislature has e xceeded the bounds of rationality, whereas a smaller burden means that Congress's error, if any, is less likely to ju stify the extreme sanction of invalidation on due process gro unds.

If, for example, Congress imposed a one-dollar burd en on each member of some industry, and we concluded that five cents was the only amount that could be linked to Congress's asserted justification for the burden, w e would still be disinclined to strike down the statute; th e fact that the burden imposed was twenty times the actual cost would

not be determinative. As the actual amount of the b urden decreases, errors in its calculation increase in re lative magnitude, but the leeway given to Congress in enac ting social and economic legislation mandates that we lo ok to absolute rather than relative magnitudes, so that o ur review is limited to those laws that work the most severe disruptions of settled expectations.

39For similar reasons, we doubt that a former coal

company would have a credible claim of "considerabl e" burden if it were only responsible for a small numb er of beneficiaries under the Act, even if the company wa s in such dire financial straits that the liability woul d push it over the economic edge. It is the aggregate cost--t he total size of the burden imposed--and not the per-benefic iary cost that is significant under our due process jurisprudence. While the burden in this case is cer tainly substantial, and thus we will carefully scrutinize the Coal Act, the burden is not dispositive in itself. We ac knowledge that the Coal Act will put these particular plainti ffs out of business, but that fact is again a matter of relati ve burden, not absolute burden and, because it does not determ ine the due process issue, we reserve our discussion of thi s consideration for our analysis of the plaintiffs' t akings challenge infra Part IV.

3. Proportionality and Congress's Ability To Go Bey ond

Private Contracts

As we stated above, proportionality is the proper t est of economic impact. The burden imposed on regulated pa rties may be heavy, but the Connolly Court found that a l arge burden is not unconstitutional if the liability act ually imposed is not out of proportion to the claimant's prior experience with the object of the legislation. See Connolly, 475 U.S. at 226; see also Eastern, 118 S. Ct. at 21 50-51 (plurality) (discussing the justifications for impo sing liability as part of the analysis of the economic impact fact or). Prior experience can consist of conduct that creates reas onable expectations about the object of the legislation or conduct that creates the problems that impelled the legisla ture to act. Given that the situation that impelled Congres s to enact the Coal Act contained elements of both, we b elieve that the necessary proportionality exists.

The Coal Act bridges a gap between the contractual promises of coal companies and the full extent of t he funding required to provide retired miners with lif etime health benefits. The Trustees and the government ar gue that the companies' extracontractual acts, signalle d by contractual language but going beyond that language

, justify Congress's decision to bridge that gap. The

40extracontractual acts fall into two general categor ies: the

instability of the pre-Coal Act benefit funding str ucture to which the former coal companies contributed, and th e expectation of lifetime benefits created by contrac tual language combined with the parties' consistent prac tices. As we have explained, we consider these reasons suf ficient justification for the liability imposed by the Coal Act.

As the defendants put it, the NBCWAs made a long-te rm commitment to provide health-care benefits but only a short-term contractual commitment for funding.14 Th ey argue persuasively that this arrangement would be s illy, even suicidal, for the miners and the funds were it not made in the context of a belief that the industry w ould continue on pretty much as it had been for the past few decades. Given this, we think that Congress could reasonably conclude that it would be fair to hold t he coal companies to the implicit part of their promise, be cause when they left the industry the explicit part lost its meaning. See ABC, Inc., 156 F.3d at 1255-57.

The Eastern plurality did not reject the Connolly p rinciple that government may do more than require private pa rties to live up to their contracts:

[C]ontracts, however express, cannot fetter the constitutional authority of Congress. Contra cts may create rights of property, but when contract s deal with a subject matter which lies within the contr ol of Congress, they have a congenital infirmity. Parties

cannot remove their transactions from the re ach of dominant constitutional power by making cont racts

about them.

If the regulatory statute is otherwise with in the powers of Congress, therefore, its applicati on may not be defeated by private contractual provision s. For the same reason, the fact that legislation disre gards or

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14. This disposes of plaintiffs' contention that th e guarantee clause of 1978 would have been superfluous if there were alre ady a lifetime guarantee of benefits. The guarantee clause was an attempt to insure that the Trustees could live up to their obligation s, an attempt that ultimately failed.

41destroys existing contractual rights does no t always

transform the regulation into an illegal tak ing. . .. [H]ere, the United States has taken nothing for its own use, and only has nullified a contractual pr ovision limiting liability by imposing an additional obligation that is otherwise within the power of Congre ss to impose.

Connolly, 475 U.S. at 223-24 (citation omitted); se e also Eastern, 118 S. Ct. at 2148 (plurality).

In Connolly, a contract limited the employers' obli gations even if contributions proved insufficient to provid e the promised benefits. The challenged legislation conve rted that defined contribution obligation to a broader define d benefit obligation. Congress enacted the law so that retire es could receive the vested benefits they had been promised and that they legitimately expected. The Court found a reaso nable relation between the employers' acts and ERISA-impo sed liability, even though the employers could not have foreseen a defined benefit obligation from the face of the c ontract. Here, the signatory operators created a benefit fun d with a legal obligation to pay out more than the operators were required to pay in, just as in Connolly, and the Co al Act was Congress's attempt to close that funding gap.

The plaintiffs distinguish Connolly by arguing that the problem in that case was that companies had made br oad promises that the pension funds to which they contr ibuted would pay pensions, but only obligated themselves contractually to pay a much smaller amount to those pension funds. The plaintiffs claim that, in this c ase, the promises that the Funds would pay benefits were nar row, because those benefits could be reduced or eliminat ed at any time, and the contractual obligations were broa d during the period of their existence. As we have di scussed above, however, Congress decided that even though t he coal companies' contractual obligations were not br oad enough to sustain the Funds, their promises that th eFunds would pay benefits--made as part of the BCOAunion negotiations--were broad. This is a reasonabl e reading of the NBCWAs, particularly given that the 1974 NBCWA removed the Trustees' discretion to change be nefit levels without the bargaining parties' permission a nd that

42the 1978 NBCWA began the practice of enumerating th e

exact health benefits to be provided. Cf. Nobel, 72 0 F. Supp. at 1180 (holding that benefits could not be r educed or discontinued by the Trustees despite the financi al burden on the Trust).

The Coal Act extended the operators' contractual obligations to include responsibility for the expec tations generated and invited by the contracts. Essentially , the Act is Congress's attempt to do equity. We agree with t he court in ABC, Inc., which wrote:

The constitutionally significant feature abo ut these later agreements is that they made it reason able for employers to expect a similar state-imposed duty, and thus rendered such a duty, when eventually i mposed, not unfairly retroactive. That appellants co uld have successfully defended a breach of contract s uit seeking lifetime benefits under the 1974 agreement i s of no

consequence.

ABC, Inc., 156 F.3d at 1258.

The plaintiffs argue that it is implausible that op erators in an industry with "very high turnover of employer s," Connors v. Link Coal Co., 970 F.2d 902, 903 (D.C. C ir. 1992), would have agreed to a perpetual funding obl igation enforceable even against operators who left the coa l industry entirely, whether for economic reasons (hi gh labor costs, competition from other fuels, and the like) as B&T did or because they were out of coal. We agree that it is unlikely that the coal companies intended to create this exact funding structure, although modern employment relations often include post-retirement promises th at may prove burdensome when conditions change for an employer. The crucial question, however, is whether the companies' actions, through the BCOA through which negotiations with the unions were conducted, create d reasonable expectations about benefits and establis hed a funding structure vulnerable to "dumping" retirees when companies left the industry. If so, Congress is not precluded from acting to redress the harms caused b y this

situation.

43