Andre Davis, Baltimore City Solicitor, is leading a climate lawsuit against Big OilAndre Davis, Baltimore's chief legal officer, is leading a climate liability lawsuit against fossil fuel companies. Photo credit: City of Baltimore via YouTube

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By Seamus McGraw

Allies and critics alike were caught off-guard when Andre M. Davis, Baltimore’s city solicitor, announced in July that the vulnerable coastal city was filing a lawsuit against fossil fuel companies. The city, already suffering the ravages of a changing climate, charges that BP, Chevron, ExxonMobil and 23 other companies had worked for decades to conceal the dangers of climate change.

Just one day earlier, U.S. District  Judge John Keenan had tossed out a similar suit by New York City, arguing that while climate change is undeniable, it is the role of federal and state legislatures to address it, not the courts.  A month earlier, a federal judge in California had reached the same conclusion, dismissing a suit filed by San Francisco and Oakland on very much the same grounds.

So why then would Davis, a 69-year-old former state and federal judge who became the city’s chief legal officer in 2017, known more for his lifelong commitment to civil rights, who had gained a reputation as a thoughtful, deliberate and careful jurist, take on such an apparently quixotic challenge?

The answer, say those who have known him well, is the suit represents one more chance for Davis to go to bat for the place he has always called home. And he has spent his entire life bucking the odds.

His friends and colleagues and former mentors contend there is nothing surprising in Davis’ enthusiasm for the case, nor in his seemingly unflagging confidence that in the end, the suit will prevail.

“He has always had a strong sense of public service,” said Franklin Lee, a Baltimore lawyer who has known Davis since his days at the University of Maryland Law School. And he’s also had a firm faith in the power of the courts, state courts in particular, to right what he sees as wrongs.

The movement to hold the fossil fuel industry accountable for its role in climate change—and obscuring it with decades of misinformation and funding outright denial efforts—is also a movement for environmental justice. The dozen communities across the country that have filed climate liability suits are seeking compensation for real and future damages that put infrastructure and people at risk and don’t believe taxpayers alone should keep footing the bill as it comes due. The impacts also take a disproportionately larger toll on poor and minority communities.

Baltimore has a long history of battling injustice. While Davis was growing up in the 1950s, it was as segregated as any city in the country. On the snowy night in 1949 when he was born, his mother had to travel all the way across the city to a hospital where black doctors could deliver black babies.

And yet, the East Baltimore neighborhood where he was raised had benefited from the post-war economic boom. Most everybody who wanted a job had one, many of them working for Bethlehem Steel, including most of Davis’ family. Davis described the neighborhood as a  refuge, a sanctuary—a community in the best sense of that word. “It was a community in which people looked out for each other,” Davis told the Baltimore Sun in a 2017 interview. “My mother told me, ‘Somebody’s always watching you,’ and it was true. You couldn’t go very far without eyes on kids.”

Davis never lost his connection to Baltimore or to the neighborhood where he grew up. Even when he earned the first scholarship awarded by the Ford Foundation to a Baltimore kid and attended the prestigious Andover Academy in Massachusetts—he was one of only four African American students in the school at the time—he remained steadfastly loyal to his home city, friends say.

“Some of the classmates you meet in those kinds of environments end up very important, running things,” Lee said. Indeed, Davis’s stint at the school was bookended by Bushes: former President George W. Bush graduated the year before Davis arrived and former Florida governor and 2016 presidential candidate Jeb Bush entered the school the year after Davis graduated. But those years in the leafy reaches of New England did nothing to dull the lure of home for Davis.

College brought him closer to home when he entered the University of Pennsylvania in 1971, receiving a bachelor‘s degree in American history.

He then earned a living at a series of jobs, including driving a cab, which honed what was already a granular and ground-level grasp of every street in the city and the people who travel them.

Inspired by a class he took on constitutional law, Davis turned his sights toward becoming an attorney.

“He really hit the law school here like a star,” said Larry Gibson, a professor who taught Davis at the University of Maryland Law School. “To say that he was a student leader is a gross understatement.” He was intellectually gifted, driven, and yet had a “down to earth” quality, his former schoolmate Lee remembered. Even then, Lee believes, he was being groomed to be a judge by his professors.

During his three years in law school, he racked up awards and honors. He wrote for the law review and was a skilled litigator who was elected to serve as one of three members of the school’s National Moot Court Team. He served on the honor board and was president of the Black Law Students Association before graduating among the top 10 students in his class.

It’s where he sharpened his passion for civil rights law and developed a lifelong appreciation for the power and authority of state courts. The University of Maryland Law School did not admit black students until 1936. Peter Quint, the Jacob A. France professor emeritus of constitutional law at the University of Maryland and one of Davis’s instructors, said the federal courts did not make that decision. “It was decided by the Court of Appeals of the State of Maryland,” Quint said.

Davis had been keenly aware of the state court’s role. And he was also profoundly aware of the need to literally carve those hard-won advances in stone, his professors noted. He was instrumental in beginning the drive to name the library after an icon of civil rights law, Supreme Court Justice Thurgood Marshall.

Davis had dreams of becoming a great civil rights lawyer.

He graduated and served as a clerk for federal Judge Frank Kauffman and later for Francis Dominic Murnaghan Jr. on the United States Court of Appeals for the Fourth Circuit, whom years later he would replace on the bench. Davis became an appellate attorney for the U.S. Justice Department’s Civil Rights Division, went on to become an assistant U.S. attorney for the District of Maryland and after two years went into private practice. In his spare time, he taught at his alma mater.

He had been out of law school just 10 years when then-Gov. William Schaeffer appointed him associate judge in the Baltimore District Court.

For Davis, it was an ideal post. Not only did it give him a chance to serve justice on his beloved home turf, it gave him a chance to do it on what he had come to believe was a court that really mattered.

“He really loved being on the district court because he was dealing with real problems, real people’s lives on a relatively small scale, “ Lee remembered. “He told me that it gave him great satisfaction that he could mete out justice in an environment where people just weren’t expecting it anymore.”

In 1990, Schaefer appointed him to the District Court. Five years later, he was confirmed as a judge for the U.S. District Court for Maryland, and in 2009, upon the death of Murnaghan, he was appointed to the Fourth Circuit Court of Appeals.

For many an ambitious jurist, that would be the end of the line. But Davis was never destined to be the type who “just retired to the bench,” his old teacher Gibson said.

And so, to his colleagues and former mentors, it came as no surprise when he stepped down from the Fourth Circuit to become Baltimore’s city solicitor last year. He had brushed aside repeated overtures from Baltimore Mayor Catherine Pugh for him to take the job, but he finally made the leap.

It was, Quint believes, a decision motivated by Davis’s fierce loyalty to his hometown. “A sense of place,” Quint calls it, “a sense of identification with the place where he was born, and where he grew up.”

It was also an opportunity for Davis to continue to flex his legal and intellectual muscles while at the same time returning to what had been his first real loves: Baltimore and the pursuit of civil rights cases, said Gibson. “It doesn’t mystify me that after 30 years on the courts he wanted to try something else,” Gibson said.

What does mystify some is that among the first cases he would tackle would be a lawsuit targeting 26 major oil producers, seeking to hold them accountable for the ravages Baltimore has suffered and can expect to suffer in the future from a changing climate.  

In all the years he has known him, “I have had zero discussions with him on climate in general,” said Lee, “let alone that particular lawsuit.”

“It’s a complete mystery, this whole thing on this climate change case, a complete mystery. I have no idea where his mind was on that,” Lee added.

But others who have known him over the years believe they can suss out a familiar pattern in his decision to file suit against the oil producers in the Baltimore District Court, the very court where he first served as a judge.

Almost immediately after Davis filed the suit, the defendants in the case moved to have the case heard in federal court, where legal precedent favors their arguments for dismissal. Davis and the city are contesting that decision, urging the federal court to return the case to the state courts.

Davis said he is confident that his former colleague on the federal bench, Judge Ellen Hollander, will see things the way he does. “We simply took the view…that the New York and California federal judges employed deeply flawed reasoning in their orders to dismiss those cases.” Davis said. “We have great federal judges in Maryland—of whom Judge Hollander is one—who never blindly follow others…we were confident that we’ll get a full and fair hearing and, specifically, a complete opportunity to explain why the court should reject the reasoning in those cases and remand our case to state court, where it belongs. Time will tell.”

But perhaps an even more compelling impetus for Davis to take on such a complex case is that it has the potential to be, in effect, a landmark civil rights case. It would not vary much from the landmark decision that opened the doors of the University of Maryland school to black students and made Davis’ career possible, said Quint.

“This case is kind of universal,” Quint said. “But in general it’s often the case with environmental problems that they fall the hardest on minorities and disadvantaged groups…and so there’s a relationship between the two kinds of civil rights claims.”