38
Opinion of Thomas, J.
to FERC of jurisdiction over interstate transmission. Nor does the Court explain how the statute grants FERC jurisdiction over unbundled retail transmission, yet is ambiguous with respect to the question of bundled retail transmission.
Even if I agreed that the statute is ambiguous, FERC did not purport to resolve an ambiguity in the passage upon which the Court relies. Instead, FERC refused to resolve what it considered to be a statutory ambiguity, in part because it determined that resolving this question was too difficult. Thus, while under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984), the Court will defer to an agency's reasonable interpretation of an ambiguous statute, this passage does not provide an interpretation to which the Court can defer.
2
FERC does provide more explicit interpretations of its jurisdiction elsewhere. It is difficult, however, to isolate FERC's position on this matter because FERC presents different interpretations in its orders, its brief, and at oral argument. At certain points, FERC affirmatively states that it lacks jurisdiction to regulate this transmission; at other times, FERC is noncommittal. The Court's heavy reliance on one statement, therefore, is misplaced. And while the Court recognizes in a footnote that FERC made conflicting representations, see ante, at 25, n. 14, in deciding to defer to the agency the Court fails to place any weight on the fact that the agency presented inconsistent positions. See United States v. Mead Corp., 533 U. S. 218, 228 (2001) ("The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position . . ."). These inconsistencies alone, however, convince me that the Court should neither defer to the aforementioned statement of FERC's
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